IASbhai Daily Editorial Hunt | 18th Nov 2020
“What we fear doing most is usually what we most need to do.” – Tim Ferriss
EDITORIAL HUNT #247 :“Bail is a rule and Jail is an exception | UPSC”
G.S. Bajpai | Ankit Kaushik
Bail is a rule and Jail is an exception | UPSC
G.S. Bajpai is a Professor and Chairperson of the Centre for Criminology and Victimology at the National Law University Delhi, where Ankit Kaushik is a Research Associate.
Changing the discourse on victim jurisprudence
The system needs to account for victims at the pre- and post-crime levels; remedies have been more a judicial initiative
SYLLABUS COVERED: GS 2 : Judiciary : Arrest and Detention
‘Bail is rule, jail is an exception’. Examine the remedies , compensation and rights of the victim in India -(GS 2)
- Victim rights to access to justice
- Compensation and assistance
- Right to Information
#ANECDOTE : A JUDGE GIVES LYRICAL JUDGEMENT ON RIOTS
- STATE OF RAJASTHAN V. BALCHAND : ‘Bail is rule, jail is an exception’ is a legal principle that was laid down by the Supreme Court in a landmark judgement of State of Rajasthan v. Balchand alias Baliya in 1978.
- INFRINGEMENT OF RIGHTS : Detention of an individual infringes his right to life and liberty as guaranteed under Article 21 of the Constitution of India.
- DETENTION : The main purpose of detention is to ensure easy proceedings by availing the accused for the trials without any inconvenience.
- VULNERABLE AND VICTIMS : The primary victims — mere witnesses in the eyes of the law — are side-lined and left to their own resources.
- RIGHT TO LEGAL REMEDY : The victims are frequently left without remedy where the institutions geared towards securing justice to them fail to deliver.
- PIECEMEAL INITIATIVES : While several steps have been taken to come up with remedies, progress has been piecemeal and marked by judicial initiative rather than legislative enterprise.
- GROUND REALITIES : While the Supreme Court has led the movement for recognition of victim rights to access to justice, little has changed the ground realities.
- A QUICK REVAMP : There is an overwhelming need to re-conceptualise the institutions of our criminal justice system to account for victims both at the pre- and post-crime levels.
- VICTIMISATION : As opposed to post-crime mitigation and rehabilitation, a pre-crime conceptualisation of victimisation is geared towards prevention.
- EFFECTIVE SYSTEM : A truly effective criminal justice system can identify potential victims and to put measures to protect them in place — before the incidence of crime itself.
- CAPACITY BUILDING : Capacity building and effective implementation are key to such endeavours.
VICTIM’S RIGHTS AND NEEDS
- REVEALING THE IDENTITY : In a post-crime scenario, however, there is a need to shed the image of the victim as a mere witness and to institutionally recognise their rights and requirements.
- ACCESS TO JUSTICE : The conceptualisation of access to justice for victims requires viewing such access less in terms of Directive Principles of State Policy under Article 39A, and more as a fundamental right under Articles 14 and 21.
- COMPLAINT MECHANISM : There is an urgent need to strengthen the complaint mechanism for non-registration of FIR .
- EASY INTERFACE : Access to justice also requires the creation of victim-friendly procedures that are aimed at reducing their inconvenience.
- REPRESENTATION AND FAIR OPPORTUNITY : It is imperative to recognise the need for effective victim participation.
- RIGHT TO BE HEARD : There is a need to recognise the right of victims to be heard at all appropriate stages of a trial.
- LEGAL AID : Victim Impact Statements can help accord this right.Moreover, substantive access to justice also requires access to legal aid.
RIGHT TO INFORMATION
- RIGHT TO INFORMATION : It turn, enables their access to all other rights. Victims must be entitled to information regarding their role in the criminal justice process.
- RIGHT TO PROTECTION : The victim must be kept abreast of all developments in the trial process which may potentially compromise their security.
- READY FRAMEWORK : The framework for such intimation is already available to specific victims in Section15A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
- WITNESS PROTECTION SCHEME : Other measures for witness protection such as relocation and change in identity, as provided for in the Witness Protection Scheme, too need to be reviewed and enforced effectively.
- ASSISTANCE : The state must play the role of a facilitator in providing to the victims all such assistance as is necessary — medical, psychological, financial and material.
COMPENSATION AND RESTITUTION
- POLITICAL WILL : The political will for its enforcement at a state level has been found to be wanting.
- VICTIM COMPENSATION SCHEME : The Victim Compensation Scheme provided for under Section 357A of the Code of Criminal Procedure must be revitalised by revising it in terms of accessibility and adequacy.
WHY IS JAIL AN EXCEPTION
- MARGIN OF ERROR : Unless there are some cogent reasons for custodial interrogation and sustained detention go against right to liberty is considered to be punitive and against the principles of natural justice.
- TRENDING REFORMATIVE THEORY : To reform an accused and to keep him away from hardened criminals in jail which are deemed to be universities of crime.
- HUMAN RIGHTS ACTIVISM : A rise in Human rights activism, the equilibrium between the liberty of an individual and the interest of society has become the main concern.
Therefore, the courts ensure that a person is not detained unless the interest of justice suffers if an arrest is not made.
SOURCES: THE HINDU EDITORIAL HUNT | Bail is a rule and Jail is an exception | UPSC