Post-2G, courts increasingly hanging up on bail pleas

When Union Law Minister Salman Khursheed expressed concern over businessmen being kept behind bars and said this might affect investment, he might not have bargained for the Supreme Court's reaction that his “comments are disturbing.” Faced with having to decide between granting bail or sending the accused to jail before trial, trial courts have usually plumped for the former, except in serious or heinous crimes. But the 2G spectrum case, in which some of the accused have been packed off to jail at the pre-trial stage, has set a new trend that trial court judges describe as “changing the rules of the game” and that many legal experts see as a worrying challenge to well-settled principles of law in the grant of bail. Though by itself the refusal of bail is not punitive, said former Solicitor-General Harish Salve, “the impression however is inescapable that in current times the societal revulsion against corruption in high places is displacing established principles of grant of bail.” But if public opinion is the driving force behind denial of bail, and the judiciary wants to be seen as taking immediate steps against corrupt politicians and corporates, that would constitute, said Mr. Salve, “a subversion” of the principles of liberty. Presumption of innocence Reminding that at the pre-trial stage, every accused person is presumed to be innocent until the matter is finally disposed of by a competent court, Mr. Subramanian said “simply because a person has been charged with an alleged offence, he does not lose his right to protection of life and personal liberty.” The main consideration in the matter of bail should not be that the accused is detained as a punishment, he said, but “whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence.”