Nailed on bail

The Supreme Court has questioned the CBI on the differential bail rationale for the 2G accused. While the agency is reportedly not opposing bail for five of the accused,including DMK MP Kanimozhi and Kalaignar TV managing director Sharad Kumar,it is contesting the bail pleas of others like Swan Telecom promoter Shahid Balwa and former private secretary to A. Raja,R.K. Chandolia. Justice Singhvi pointedly asked why,if the CBI was now convinced that these five would not tamper with evidence,was it necessary to have kept them in prison all these months. Those are hard questions,which the CBI will be hard put to convincingly answer.

Despite our higher courts having repeatedly affirmed the “bail,not jail principle”,bail is often not granted in many cases that involve high-profile politicians or business persons. The general backdrop is of concern. Given the sense that our investigative and judicial processes tend to snake on without real repercussions for such people,the popular worry is that crime will ultimately go unpunished. So rather than focusing energies on building up a solid,damning case against the accused and working towards conviction,it seems easier to have them kept in interim custody for months. However,that approach is entirely wrong-headed in a democracy that respects due process. Our constitutional and criminal jurisprudence presumes innocence until guilt is conclusively proven — and this action undermines that crucial principle.

Bail should be the default setting,unless there is firm reason to believe that the accused may evade trial or obstruct investigations. This applies equally to the influential 2G accused as it does to the many,many common citizens who have been pre-emptively deprived of personal freedom,and put behind bars,even as their cases drag on. In India,bail has become a matter of judicial instinct — custody is repeatedly extended for those intuitively judged guilty,rather than basing it on clear,rational criteria. This is not just a signal of low faith in the investigative and judicial system and its capacity to bring offenders to justice,but it is a direct repudiation of the rule of law.