There is not a dull day in present times at the Supreme Court of India. I can perceive a transformation - albeit slowly - coming about the hallowed institution. Chief Justice Ramana and his apparently cohesive team seem determined to shake up an otherwise placid place, where, until the pandemic set in, the need for a low profile, balance, and an extreme regard for tradition took precedence over a sense of hurry and pace. That was no doubt an unexceptionable business model until a few years ago. This may not however be acceptable any longer to a dynamic nation like ours which is impatient with red tape and the status quo. The judicial machinery in India grinds so slowly that many of us have given up speeding up a lost cause.
Several recent decisive interim orders - not merely judgments - point to a visible refreshing change of style of the apex court fused with a commendable concern for speed. The Ramana Court, which completed a year a few weeks ago, will be remembered for long for some extraordinary sensitivity to getting on with the pending cases. Our jurisprudence had been exasperatingly forgiving of judicial sloth far too long to remain unmoved.
I am happy that recently the apex court gave a dressing down to the Allahabad High Court for its order granting bail to Ashish Mishra, the son of a Union Minister, who had allegedly played a prominent part in a horrific crime (October 3, 2021) at Lakhimpur Kheri ( Uttar Pradesh), in which 8 persons ( including four farmers) were killed. Here, accused Mishra was allegedly seated in an SUV which mowed down four farmers protesting against the visit to the area of the U.P. Deputy Chief Minister.
Till recently, a few high courts had been a law unto themselves issuing bald orders and reserving the rationale for them for an unspecified future date. None dared to question this unwholesome regimen fearing arbitrary contempt proceedings. The somnolent and all-round apathy characteristic of many of our public institutions is now being reversed by the apex court. High courts should therefore beware that many of their orders are being clinically scrutinised by the highest court of the land, aided of course by some vigilant and zestful anti-establishment lawyers. Caustic observations on HC orders seem not only warranted but are actually needed to impart urgency to the sacred duty of delivering judicial redress.
The Lakhimpur Kheri case is being investigated by a Supreme Court-appointed Special Investigation Team chaired by a former Punjab and Haryana High Court Judge. On April 18, after he had spent several months in jail, Mishra was granted bail by the Allahabad HC. Against this order, the aggrieved families and associates of victims filed a petition in the apex court, which set aside the HC order and directed Mishra to surrender to the authorities within a week to being lodged again in jail. The petitioners had complained that they were not heard by the high court before the latter passed its controversial order.
The language used by the apex court in expressing its resentment over the manner in which Mishra was bailed out sets the law on bail in strong and clear terms. The apex court felt that the High Court was casual in dealing with a sensitive matter. Most importantly, victims or their families were not heard by the court which was "in a tearing hurry” to grant bail to an accused who had taken part in an unforgivable act. The HC order granting bail had quoted irrelevant facts to justify the release.
The Lakhimpur case observations and those found in many other past cases state the law on the subject in clear terms. Any order granting bail to an accused in a case under investigation or on trial will have to take into consideration the gravity of the offence and the severity of the mandatory punishment prescribed by statutes. Also relevant is an evaluation of the possibility of the accused tampering with the evidence already collected by the prosecution.
In sum, there is no place in our criminal jurisprudence for unwarranted leniency towards a person who has prima facie committed an offence. This goes against the tenet that one of our most revered Judges V.R.Krishna Iyer had set decades ago; namely, 'Bail is the rule and mail is an exception.' He was speaking at a time when politics and crime were only slightly linked. Now the two elements have got mixed up so badly that judicial circumspection is justified in every case.
(R.K. Raghavan is a former CBI Director who currently teaches Criminal Justice and Policing at the Jindal Global University, Sonepat (Haryana). He tweets at @rkrshanti)