By Aditya Mehta

The Bombay High Court in an order dated April 3, 2020 decided that in light of the Covid-19 pandemic, bail applications will not be heard by Courts. A special urgency will have to be made out for any bail application to be heard during the lockdown.

In an earlier order, the Supreme Court suo motu (“on its own motion”) had ordered the States to consider releasing certain prisoners on temporary parole and bail where they deem appropriate as the Court recognised the excessive over-crowding in Indian prisons. But such a discretionary decision of the State Government is different from Courts independently coming to a conclusion in a bail hearing that an individual has been unjustly imprisoned and should be released. The Bombay High Court deciding that such a right to bail pending trial is not urgent and leaving deserving under trial prisoners to languish in prisons suffers from various problems.

Urgency and Bail at the Bombay High Court
One must understand the context in which the Bombay High Court made these observations. Even in ordinary times unaffected by Covid-19, the Bombay High Court prioritises bail applications but it does not treat them as ‘urgent’. Thus, bail applications can sometimes remain pending for months together without being decided. If an under-trial wants the bail application taken up quicker, a special ‘urgency’ must be made out.

Extending the same, during a lockdown where courts are hearing only urgent petitions, the Bombay High Court has said courts will not hear bail applications without there being a special ‘urgency’.

A Flawed Approach
This decision of the Bombay High Court is problematic for many reasons. Principally, the Supreme Court has on several occasions emphasised the importance of bail as a manifestation of justice. To remain incarcerated without your right to bail even being heard by a court then makes a mockery of justice. The outcome is those wrongfully imprisoned continue to have their liberty curtailed indefinitely despite the legal presumption of innocence in their favour.

Even on other considerations, this decision of the Bombay High Court is flawed. Firstly, it was passed ex-parte, which means it was passed without hearing the concerned parties. Thus, the Bombay High Court has denied bail without even hearing the concerns of the under-trial who filed the petition. Further, it relied heavily on a similar decision of the Rajasthan High Court which the Supreme Court has since stayed. This means the decision of the Bombay High Court is based on reasoning that the Supreme Court has, for now, disagreed with.

Finally, one of the reasons given by the Bombay High Court is that processing bail requires significant formalities to be completed which puts other individuals, such as the court staff, at risk. This reasoning is particularly flawed, as it is well within the power of the High Court to curtail the formalities and impose less onerous conditions for bail.

The High Court’s order suggests that rather than prioritise fundamental rights and find solutions, it has instead sought to avoid the problem entirely by choosing not to hear the petitions. The price is ultimately paid by those in overcrowded prisons, risking infection and much worse.

The Role of the Judiciary and Bail

A lot has been said about the changes our society should make when Covid-19 is no longer the threat it poses today, changes in healthcare being the foremost of them all. However, prisons countrywide have released some under-trials to reduce overcrowding during Covid-19. One important area that may develop is that when it was possible to release these individuals without any increase in crime rate, was there a need to imprison these under-trials to begin with?

The judiciary will have to be at the forefront of such a movement, as it always has been in the development of bail jurisprudence in India. And the future of any such positive reform will be determined by the conduct of the judiciary during the crises and the seriousness with which it views individual liberties.

Given this context, it is disheartening to see the approach taken by the Bombay High Court. At a time where the court has access to video-conferencing facilities, electronic filing and judges/lawyers who can use the same, it could easily have used these facilities to hear bail applications safely. It could have made administrative changes that facilitated bail without exposure for court staff. Further, recognising the urgency to individual liberty would have been a critical step in reducing our vast under-trial prison population and improving bail jurisprudence even post Covid-19.

Instead, the Bombay High Court has gone against a long tradition of courts being the guardians of incarcerated under-trials. One can only hope the Hon’ble Court reconsiders its decision, or the Supreme Court steps in.

The writer is a practising lawyer in the Bombay High Court