Should Bail be granted as a right?

Lock-up question unlocks debate
New Delhi, Oct. 12: The Supreme Court today took exception to a statement attributed to law minister Salman Khurshid on "locking up businessmen", swivelling the spotlight to the contentious issue of bail, though the minister did not mention the word.
The Indian Express had on Monday quoted Khurshid as asking: "If you lock up top businessmen, will investment come?"
The minister was explaining how the functioning of the government could be affected if other institutions did not understand "the kind of political economy we are faced with today".
Khurshid, the Oxford-educated minister with a degree in jurisprudence, did not mention "bail" but his comments came against the backdrop of several businessmen accused in the 2G scam spending months on end in jail, though they have not yet been pronounced guilty.
Some commentators have pointed out the irreconcilable nature of the principle "presumed innocent till pronounced guilty" and incarceration while the trial is on, but the government has largely been silent on the issue.
The CBI, the investigative arm that officially cannot be equated with the executive authority, has been advocating jail on the ground that evidence could be tampered with if the accused were granted bail, although the alleged offence was committed three years ago.
The Supreme Court today asked the government to explain whether the minister did indeed make such a statement.
"The minister has suggested that we are interested in keeping business people behind bars. This is disturbing for us. So, do you support this? If it is so, why are we wasting our time?" a two-judge bench of Justices G.S. Singhvi and H.L Dattu asked additional solicitor-general (ASG) Haren P. Raval.
The bench was hearing the bail pleas of Unitech Wireless MD Sanjay Chandra, Swan Telecom director Vivek Goenka and Reliance Telecom's Gautam Joshi, Surendra Pipara and Hari Nair.
Raval initially said he was only representing the CBI in the case, prompting Justice Dattu to remind him that he was wearing two hats ' that of CBI counsel and the ASG. "You can't say that the CBI is not part of the central government," Dattu said.
All this talk about "political economy" may be the "personal" views of the minister, Justice Dattu said. "Please understand that we are in the midst of a serious matter. We have had six hearings on this. We thought today that you will change your stand," he said. "This (the minister's remarks) is surprising. If this is the stand of the government, please clarify," Justice Singhvi said.
Khurshid later suggested that what he said was not the government's stand. "Why should I regret (my comments)? Not government stand, government stand is in the form of affidavit," he said.
"We all have to see the direction that our country's political economy is going. We all have to work in collaboration... It's for the court to decide the merits of each case," he added.
In response to a question from The Telegraph, senior lawyer Rajeev Dhavan said: "The court must realise that the minister is doing his job just as the court is doing its job. The minister is concerned that the climate must not be hostile to investors."
"The question whether the Indian system should not be hostile to investors is a policy statement…. It is not necessary that the court should react to every statement of a minister," he added.
The Supreme Court bench also asked the CBI to explain the veracity of another report which said that the agency would not oppose any bail plea made by Kanimozhi, MP and DMK leader M. Karunanidhi's daughter, in the lower court.
Raval denied the report immediately. "There is no change in my instructions. My instructions are to oppose bail on a legal and factual basis in every case," Raval said.
Justice Singhvi said the court would only go by "established parameters for grant or refusal of bail" to the accused in the case. That includes whether there was an apprehension that they would tamper with evidence and witnesses or flee the country.
Opposing the bail pleas, Raval said economic crimes were rising in the changed socio-economic scenario, making out a case for not handing out bail so that it would act as a deterrent.
Bail should be denied as a matter of rule in every corruption case unless the court was satisfied that a prima facie case was not made out against the accused, he said.
The ASG cited international conventions, too, to buttress his contention.
However, in the US as well as in the UK, bail is the norm and jail the exception during trial as the principle of habeas corpus (which is used to combat unlawful detention) is applied to uphold individual liberty.
In the US, bail is usually granted, unless the suspect is prone to violence or the case is charged under the Patriot Act that deals with terrorism.
An American case in point is that of Raj Rajaratnam, who was convicted in May for insider trading. The charges carry nearly 25 years in prison but he is out on bail till sentencing, which is expected tomorrow. Even when he was arrested in October 2009, he was released a day later on a bail bond of $100 million.

Our ministers compare our system of granting bails with those those in USA.
They should.
But while going about it they should also compare the way justice is meted out expeditiously to criminals.
The Rajaratham case cited above is an example above.
He was charged in May and the verdict has already been given.
If it had been in India, even the charge sheet would not have been filed.
When one compares, they should compare everything.
Nixon had to relinquish office because of break-in he had authorized which became known as the Watergate scandal.
Would that be possible in India?
Indira Gandhi and later Rajiv Gandhi became involved with various scandals but they continued merrily and now their children and grand children are now planning to continue the good work.
Our judiciary is too slow and lenient.
Because these criminals are granted bails, they continue to drag the cases. If they are not granted bails, it would be in their own interest to have the case disposed expeditiously.
I would suggest that bails are never granted in cases involving murder, kidnapping, extortion, terrorism, adulteration of food, manufacturing spurious medicines.
In corruption cases, the properties amassed by the culprits should be confiscated.