A Former Judge on Bail, Politics and the Judiciary

Newsreel Asia Insight #45
Nov. 15, 2023

A disconcerting trend in bail proceedings is casting a shadow over the Indian judiciary, as per a former Supreme Court judge, Justice Madan B. Lokur. In a media interview, he sheds light on a worrying pattern – the erosion of the basic principles of bail, the intertwining of politics with legal proceedings and the judiciary’s apparent oblivion to these realities.

At the heart of Justice Lokur’s concern, as reported by PTI, is the principle of bail – a fundamental aspect of the criminal justice system, meant to balance the rights of the accused with the interests of society. “Generally speaking, the courts seem to have forgotten the basic principles of grant or refusal of bail. Nowadays, if a person is arrested, you can be rest assured that he will be in prison for a few months at least,” he was quoted as saying.

Bail is not a tool of punishment but a means to ensure the accused’s presence during trial while respecting their presumption of innocence. However, as Justice Lokur points out, the current trend seems to be a deviation from this principle.

Speaking to the former judge, PTI referred to the case of Manish Sisodia, a leader of the Aam Aadmi Party who was arrested and denied bail in a corruption case.

The denial of bail, as per Justice Lokur, often follows a pattern – an arrest, followed by a prolonged investigation, incomplete charge sheets and a lack of essential documents. This process, seemingly routine, raises questions about the underlying motives and the role of investigative agencies. And the judiciary appears to be unaware or unresponsive to the manipulations of investigative agencies.

The judiciary, as the guardian of justice and the Constitution, is expected to be the pillar of trust, the scale that balances power and fairness. However, when courts overlook the designs of probe agencies, as Justice Lokur suggests, they inadvertently become a cog in a machine that could erode public trust in the justice system.

Justice Lokur’s observations reflect a deeper malaise – the potential misuse of the judiciary for political vendettas. The course of investigations that conveniently change direction with the shifting political allegiances of the accused is a matter of grave concern. It hints at a scenario where the law is not blind but is peeking through the blindfold, swayed by the winds of political convenience.

The former judge also comments on the collegium system, used for the appointment and transfer of judges in the Supreme Court and High Courts.

The collegium system has evolved through apex court judgments in the 1990s. It consists of the Chief Justice of India and the four senior-most judges of the Supreme Court for appointments to the Supreme Court, and the Chief Justice and two senior-most judges for High Court appointments. They collectively make recommendations to the government for judicial appointments and transfers, aiming to maintain independence and minimize executive interference in the judiciary.

The collegium system is the best method for appointments, says Justice Lokur, but while suggesting that its opacity has to be addressed. The deliberations and criteria used by the collegium are not publicly disclosed, and there is no formal mechanism for scrutinising the qualifications or suitability of the candidates they select. However, the former judge says, “One important change is that the opacity of the government has to go. The government is more opaque than the collegiums.”

Justice Lokur’s observations remind us that the judiciary, while being an institution, is comprised of individuals – individuals who must constantly be aware of the immense power and responsibility they wield. In the words of Justice Lokur, the judiciary needs to wake up to the realities of life.