The obsession that trial lawyers have in ensuring that their clients are not taken “into custody" begins almost as soon as they are named as accused in a case.

Lawyers visit police stations waving copies of Supreme Court rulings that arrests were not necessities. Applications for anticipatory bail, and now, interim bail (a concept created in Uttar Pradesh, where a state amendment disallows anticipatory bail—now made applicable elsewhere thanks to the Supreme Court) are filed.

The minute an arrestee is released into ‘judicial custody’, a scantily drafted bail application will be tendered across the bar. Lawyers cherish frayed copies of unreported high court judgments granting “time to surrender" upon rejection of bail applications.

What is the big deal, really—so what if the accused goes “in" for a few days? For starters, it is perceived that the judiciary is much more receptive to cases in which an accused may be sent to custody athan when he is already in custody. When an accused is in custody, bail proceedings get drawn out.

The prosecutor will whine about having no instructions and the date will be pushed. If the investigation is still on, it gets pushed again. “It’s just another day," lawyers try and convince the client’s family members and themselves. Days spent in prison will eventually get set off against the ultimate sentence, but often that’s at best a silver lining to a thoroughly undesirable situation.

Being in custody as an under-trial just makes everything worse. Under-trials don’t get proper access to lawyers—applications are drafted and filed on their behalf, and they’ll only be called to the jailor’s office to sign vakalatnamas (a letter formally instructing their lawyer).

Witnesses might be examined in their absence if they aren’t brought from prison, as long as their lawyer signs off on an ‘identity of the accused is not under challenge’ undertaking, which gets issued very frequently. And the trial of a suspect gets treated on a priority basis, which all defence lawyers dread—the chances of witnesses dying of natural causes, retiring investigating officers, and missing evidence decrease.

The disadvantage persists beyond the trial. In an appeal, being on bail for the duration of the trial almost demonstrates plausible innocence.

Bollywood actor Salman Khan was sentenced to five years, which is about the average it takes for an appeal to be disposed of in the Bombay high court. Section 304 of the Indian Penal Code isn’t the worst thing one can be charged under. He was on bail for the entire duration of the trial, with no record of ‘admissible’ bad behavior. And this is a first appeal—to which an accused has a right, in practice.

Bail was inevitable for Salman Khan, and it could have done without the rush. By not giving him a copy of the judgment (a statutory right) the trial court created an urgency that allowed the matter to be listed the same day as the ruling, and listed two days after that to allow surrender of the accused after the copy was made available.

An invaluable listing, for five minutes, was all it was going to take to ask for the appeal to be admitted, the sentence to be stayed, and for the actor to be released on bail.

No court grants bail without a bail application, and so a lawyer is needed. For the poor folk who want the Legal Services Authority to be their saviour, the opportunity often only arises when the plea is to be recorded on the charge.

That is, very often, the first point at which the judge will ask where the lawyer is—that is the first point at which legal representation is deemed ‘necessary’, and may even be 2 years after initial arrest.

Bail applications, on the other hand, are “add ons". A lawyer applying at this belated stage will be met with arguments that the trial is going to begin and end quickly. It’s possible that other requirements for bail are missing—local sureties to stand guarantee, a job and family in the city that ensure reliability, and “good antecedents".

If the trial isn’t governed only under the relatively ‘lenient’ provisions of the Code of Criminal Procedure, it is a completely different story—for example, the Unlawful Activities Prevention Act, which denies bail to anyone against whom a ‘prima facie’ case exists (like G.N. Saibaba, or members of the Kabir Kala Manch, all accused of aiding and abetting unlawful Maoist activity) or the extraordinary powers of the Supreme Court resulting from contempt of court.

Salman Khan’s bail is a result of all systems—lawyers, filing departments, judges— working at their most efficient. Much like cinema, this case is dramatic, and aspirational in terms of what courts can do.

We need to therefore ask why what is right and routine for one class of persons is not accessible to others on account of poverty, illiteracy, caste, draconian legislation, or lack of effective legal representation, and how to address that.

In the meanwhile, unlike the usual Khan film, I’m actually awaiting the sequel this time around.

Amba Salelkar is a Chennai-based lawyer specializing in gender and disability.

Subscribe to Mint Newsletters * Enter a valid email * Thank you for subscribing to our newsletter.

Share Via