The Constitution of India conceived a tripartite government comprising executive, legislature and judiciary, separated in their powers but tethered by a system of checks and balances. The independence of these three institutions is sacrosanct, and is protected by the doctrine of separation of powers in the Constitution itself.
While they may each be discharging their separate mandates, the position of the judiciary is no doubt exalted by its power to review executive and legislative action, and inhibit abuse of power. Now more than ever, when the threat to personal liberty from draconian statutes looms large, an autonomous judiciary is required to safeguard the constitutional protections conferred on people. But the obliterating lines of separation don’t bode well for the future.
The doctrine of separation of powers, a basic structure of the Constitution, is under attack from the legislature’s frequent invasions into the territory of courts, undermining the sovereignty of the judiciary. Montesquieu’s potent warning is threatening to become a reality: “There’s no liberty if the judicial power isn’t separated from the legislative and executive power.”
The power to grant bail is the most prominent tool in the judicial armoury against executive tyranny, but Parliament is unscrupulously weakening it by enacting provisions to regulate this power of courts. These encroachments into judicial territory, disguised as statutory considerations for deciding bail, mock the ability of courts to independently perform their constitutional functions.
Such affronts bear striking resemblance to the British Parliament’s efforts to emasculate the judiciary of the erstwhile British India. These bail restrictions too are our British inheritance, which begs the question, why has the legislature of independent India vouchsafed their continuance?
The bail prerequisite inserted in several special statutes, which reverses the burden of proof and warrants the court to be satisfied that the accused is ‘not guilty’, took birth in the Defence of India Rules, infamously abused to place our freedom fighters behind bars. Judicial powers were abrogated to perpetuate British executive hostility on its Indian subjects, without fear of judicial accountability.
Reincarnation of such World War II era bail restrictions in modern Indian legislations similarly seeks to contract the power of courts, while tossing the personal liberty of its victims into state-sponsored incinerators. It’s not that legislative conscience has always remained aloof to the diabolical nature of these restrictive provisions. Parliament has indeed made attempts to course correct, but invariably fallen prey to the temptation of its old ways.
For instance the Essential Supplies (Temporary Powers) Act, 1946, contained a bail impediment which reversed the burden onto the accused. But at the time of enacting the substituting Act, the Essential Commodities Act, 1955, Parliament deemed it inexpedient to retain the bail restriction. The good done by Parliament was quickly washed away in 1987, when a reign of terror was sanctioned by enacting the Terrorist and Disruptive Activities Act (TADA), resulting in the arrest of more than 76,000 persons before it was allowed to lapse in 1995 on account of human rights violations.
In 2002 the controversial Prevention of Terrorism Act (POTA) was enacted which, like its predecessor, dictated to the courts the condition under which bail couldn’t be granted. Consequently, courts were unfairly constrained to decline bails, ordaining pretrial incarceration of hundreds of innocents.
Rampant abuse of the harsh bail condition, worsened by the poor conviction rate of 1%, compelled Parliament to repeal the Act in 2004. At that time too, legislative wisdom considered it unacceptable to insert such an anti-bail provision in the Unlawful Activities (Prevention) Act (UAPA), raising hopes of a new dawn. But in 2008 the amnesiac legislature amended the UAPA to impose a stringent bar to bail, once again ensuring that courts play second fiddle in their own arena.
Courts on the other hand, have abided by the constitutional path of least interference. However, even on the rare occasion when court has struck down such bail constraints as being unconstitutional, Parliament has impertinently resurrected them. In 2017, in the case of Nikesh Tarachand Shah, the Supreme Court struck down the provision proscribing bail under the Prevention of Money Laundering Act, 2002, (PMLA). Without any delay or debate, the legislature circumvented the judicial dictum and reintroduced the provision by passing the Finance Act, 2018, sending a clear message of indifference towards the implicit lines of separation.
Personal liberty is the crowning glory of our fundamental rights, and in courts inhere unbridled power to protect liberty from illegal infringement and restore it through their power to grant bail. Thus, statutory incursions into the powers of any court to independently decide the issue of bail gravely offends the Constitution.
The judiciary must defend against such encroachments, lest the legislature mistakenly assumes impunity and speeds up its march to usurp judicial territory. The subordinate judiciary has shown curious deference to the letter of the law which curtails the same liberty. However, the higher judiciary should not succumb to the trespassing legislators, as codified restraints cannot eclipse the power of constitutional courts to restore liberty.
In a landmark judgment passed in the case of KA Najeeb, while granting bail under UAPA, the Supreme Court underscored the inalienable power of courts to restore liberty even in the face of statutory restrictions. How far the light shone by the Supreme Court will reach is yet to be seen. But in the wake of an increasing number of ‘special statutes’, it must be remembered that abuse is the illegitimate offspring of power who can only be tamed by a robust judiciary. Therefore, the judiciary must fortify its jurisdiction before these lines become blurred beyond recognition.
Views expressed above are the author’s own.
END OF ARTICLE