By- Faizan Mustafa

“The fault of the deceased was only that he belonged to another religion. I consider this factor in favour of the applicant/accused. Moreover, the applicants/accused do not have criminal record and it appears in the name of religion, they were provoked and have committed murder,” observed Justice Mridula Bhatkar in her six-page order while granting bail to three main accused in the killing of Mohsin Sheikh, an innocent young IT professional of Pune, who was returning after dinner on June 2, 2014 and was wearing what the judge has recorded as “pastel green colour shirt and had sported a beard”. With this order, India cannot anymore complain against the hate crimes committed against Indians in Australia and America.

Provocation must be given by the deceased and he must have said or done something which would have provoked a “reasonable man”. Provocation cannot be claimed against anything which is lawful — to be Muslim, to wear a green shirt or sport a beard has not yet been made unlawful in India. Moreover, provocation cannot be voluntarily sought. Here, the accused, out of their own free will, went to listen to hate speeches at the Hindu Rashtriya Sena event. The order is shocking and dangerous as it rewrites the jurisprudence of provocation.

Archaic Indian law on bail, due to the concept of pecuniary “surety”, already had a class character wherein for the rich, it is bail and for the poor it is jail. Justice Krishna Iyer in the Moti Ram case, where a poor labourer was asked for a surety of Rs 10,000 in 1978, was pained to observe that “the poor are priced out of their liberty in the justice market”. Is religion the new class?

The law of bail is an old one. It seems Plato in 399 B.C. sought Socrates’ release on bond. The law of bail is a big “cobweb” — it is a web encompassing the issues of personal liberty, public concern and interests of justice. The term “bail” has not been defined under our laws. The law merely makes a distinction between “bailable offences” and “non-bailable offences” with “bail” as a right in the former and at the discretion of the judge in the latter. The classification is not based on any definite test or criterion. But generally, offences which are punishable with three years or less imprisonment are considered bailable and others as non-bailable.

The judicial discretion in granting bail is not too wide and cannot be used in an arbitrary manner. Sound discretion is guided by law; governed by rule, not by humour and cannot be arbitrary, vague and fanciful. The judge must keep in mind the enormity of the charge, severity of punishment, nature of evidence in support of the accusation, age, sex and status of the accused with reference to the victim and witnesses and the probability of the accused committing more offences on bail.

The bail cannot be granted “on parity”, that is simply because the co-accused were granted bail does not entitle the accused to get bail. This author is for the grant of bail in most cases as denial of bail impinges on the “presumption of innocence” of the accused and makes innocent family members of the accused suffer. Moreover, the accused denied of bail cannot prepare for his defence. Bail is basically security for the appearance of the accused pending trial or investigation. While I have no objection to the grant of bail to the three accused in the Mohsin murder case, we must recall how bail was denied in several more genuine cases.

Binayak Sen was denied bail for years though he had not killed anyone. The charge against him was that he was allegedly a courier between jailed Naxal leader Narayan Sanyal and businessman Piyush Sinha, because he met Sanyal 33 times, each time with due permission from the jail authorities. The evidence against him was a postcard written by Sanyal about his health and legal case duly signed by the jail authorities; a book on unity between the CPI and the Maoist Communist Centre and a letter by Madanlal Banerjee to him. Finally, the Supreme Court granted him bail.

The Bombay High Court itself had denied bail to the Delhi University professor, G.N. Saibaba, who has 90 per cent disability and moves in a wheelchair. Even his temporary bail was withdrawn. All the co-accused of Saibaba too were granted bail but the principle of parity was not accepted in his case. Similarly, members of Kabir Kala Manch (KKM), a cultural organisation founded in Pune, which fights against inequalities in society and for the promotion of democracy and had not committed any violent crime, were denied bail on charges of supporting Naxalites through their songs. Bail was similarly not given to Mohammad Aamir Khan, who was accused of 19 terror charges and had to spend 12 years in jail. When his father died and mother suffered a paralytic stroke, he moved several bail applications with the medical records of his mother and acquittal order in other cases, yet the judge refused to grant bail as it was “too sensitive” a case. Eventually, he was acquitted in all 19 cases. Sanjay Dutt on the other hand got hundreds of days’ parole even after conviction. BJP leader and former Gujarat minister, Maya Kodnani, too got bail even after conviction in riot cases. The Madras High Court last year had given bail to a rape accused so that he can mediate with the victim. The Patna HC did give bail to notorious criminals like Shahabuddin.

Let us use this controversial order to revisit our law of bail. Two-thirds of prisoners are undertrials. Let the bail law be liberalised to make bail a rule, jail an exception.

The author is vice chancellor NALSAR University of Law, Hyderabad. Views expressed are personal