No Judge Should be Afraid to Grant Bail

The subordinate judiciary established by the Constitution plays a crucial role in ensuring justice for all citizens and attaining the main objectives stated in the Preamble of the Indian Constitution.

The subordinate judiciary is indispensable as the primary fact-finder and essential component in the execution of the fundamental constitutional principle of the rule of law and the administration of justice.

Recently, special judge Niyay Bindu of Rouse Avenue Courts granted bail to Delhi Chief Minister Arvind Kejriwal in the liquor policy scam case. Due to this, she had to face heavy criticism from the public as well as in the Delhi High Court. Many individuals used social media handles to criticise the judge and raise objections regarding the judge’s objectivity.

Later on, the decision was overturned by the Delhi High Court. The High Court raised an objection to the trial court’s observation and remarked that the trial court had not applied its mind to the material submitted by the ED.

Recently, special judge Niyay Bindu of Rouse Avenue Courts granted bail to Delhi Chief Minister Arvind Kejriwal in the liquor policy scam case.

Through a series of judgments, the Supreme Court has constantly reminded that the role of a judge in a bail hearing is to consider the necessity and justification of granting bail instead of delving into the specifics of a case which would be much more appropriate during the trial. 

A few months ago, the Chief Justice of India Dr D.Y. Chandrachud has also flagged this concerning issue regarding how subordinate court judges are reluctant to grant bail even in cases where bail should ordinarily be granted. He highlighted that there remains a sense of fear among the judges of the lower courts due to which they refrain from exercising their functions effectively.

Speaking about the issue, the CJI remarked: “The district judiciary is fearful of granting bail because, over a period of time, we have a culture of subordination between the high courts and district judiciary. We have not created a footing of equality between the district judges and the high courts.”

This statement reflects how lower court judges find themselves under the pressure of the higher courts to which they are subordinate. This could be due to multiple reasons such as fear of transfer, adverse remarks in the annual confidential report (ACR), compulsory retirements and complaints in the vigilance cell.

It is only possible to faithfully implement the law and administer justice impartially if individuals entrusted with executing these duties are free, fearless, independent and impartial.

Ensuring the judiciary’s independence from external organs such as the legislature and the executive is often talked about, but there is little discussion about the various kinds of internal pressure the subordinate court judges might face from the higher courts.

This article highlights how subordinate court judges face different types of internal pressure from superior courts and the measures that can be taken to reduce this pressure, thereby making the lower judiciary independent so that it can discharge its functions efficiently.

Statutory provisions empowering high courts to supervise subordinate courts

There are various constitutional and statutory provisions that empower the high courts to supervise the functioning of subordinate courts. Article 227 of the Constitution of India gives the power of superintendence over all courts to high courts.

In recent times, it has been a trend that the litigants file bail applications in the trial courts only to get them dismissed so that they may instantly file them in a higher court because they have a higher chance to get bail in the high court when compared with the trial courts.

Article 235 of the Constitution states that control over subordinate courts in matters relating to postings and promotions shall be vested in high courts.

There are other statutory provisions that grant supervisory powers to high courts such as Section 397 and Section 401 of the Criminal Procedure Code, and Section 115 of the Civil Procedure Code that give power of revision to high courts.

Hence, high courts are empowered to exercise disciplinary powers over the subordinate courts.

Annual confidential reports

An ACR of a judicial officer is a document maintained in compliance with court rules and practice. It serves as the basis for future considerations about the officer’s promotion to a higher position and any other service-related issues.

It acts as a crucial yardstick in the assessment and evaluation of judicial officers, specifically, in matters relating to disciplinary or administrative action against such officers.

When the Supreme Court was established, it was to hear a particular class of cases involving the interpretation of constitutional provisions or important questions of law but over the decades, it has become a regular court of appeal and is flooded with bail applications.

In recent times, it has been a trend that litigants file bail applications in the trial courts only to get them dismissed so that they may instantly file them in a higher court because they have a higher chance of getting bail in a high court than a trial court.

Although lower courts do have sufficient authority to grant bail, the reason why they are hesitant to do so is that the judges of subordinate courts are more prone to departmental inquiries and actions than the judges of high courts.

There is no bigger menace to the judiciary’s independence than the judges’ susceptibility to fraudulent allegations that lead to never-ending investigations.

Therefore, subordinate court judges are more fearful of adverse remarks in the ACRs because they might act as a hurdle in their career progression. It has been reiterated by higher courts through judicial pronouncements that bail is the rule and jail is the exception, but this principle is not actually implemented in reality (especially in cases alleging terrorism activities) due to such fear.

In Krishna Prasad Verma versus State of Bihar, the Supreme Court held that: “The appropriate action which the high court should take is to record such material on the administrative side and place it on the service record of the judicial officer concerned. These matters can be taken into consideration while considering career progression of the concerned judicial officer.” 

The division Bench further held, “Once note of the wrong Order is taken and they form part of the service record, these can be taken into consideration to deny selection grade, promotion, etc., and in case there is a continuous flow of wrong or illegal Orders then the proper action would be to compulsorily retire the judicial officer, in accordance with the Rules.”

Compulsory retirement

The subordinate court judges can also be ordered for compulsory retirement by high courts. There have been multiple instances where high courts have ordered compulsory retirement to district court judges for granting bail.

Recently, in Yogesh M. Vyas versus Registrar, High Court of Gujarat, the Supreme Court ordered ₹20 lakh as compensation to a judicial officer who was given compulsory retirement as a punishment for granting bail.

In another recent case, Nand Kumar Verma versus State of Jharkhand and Ors, the Supreme Court quashed an Order of compulsory retirement of a chief judicial magistrate passed by the High Court of Jharkhand for granting bail to an accused in an offence under Section 302 of the Indian Penal Code.

The court stated, “The greater importance is to be given to the opinion or remarks made by the immediate superior officer as to the functioning of the judicial officer concerned for the purpose of his compulsory retirement.”

The subordinate court judges can also be ordered for compulsory retirement by the high court.

Hence, subordinate judges are quite hesitant to grant bail in heinous offences as they might face some strict action such as compulsory retirement or adverse remarks in their ACR.

Fear of vigilance

Several malicious litigants attempt to put pressure on judges of subordinate courts by threatening to file false allegations and to prosecute these false accusations in court. These litigants attempt to create an environment of blackmail to get their favoured decision.

There is no bigger menace to the judiciary’s independence than the judges’ susceptibility to fraudulent allegations that lead to never-ending investigations. Subordinate court judges are often scared about a vigilance inquiry that they may face if they grant bail in a liberal manner.

This is due to an underlying assumption that subordinate court judges are easily approachable because a majority of litigants initially interact with the judicial system at the district level.

Additionally, subordinate court judges are also fearful that they may get transferred or if their decision is overturned by high courts, they might face severe issues in their career growth.

Conclusion and suggestions

A nation that follows the rule of law regards the judiciary’s independence as inviolable. Without a robust, courageous and independent judiciary, neither the rule of law nor democracy can exist.

Not only are the superior courts supposed to operate independently and fearlessly, but the same is also expected from the district judiciary. A judge of a subordinate court must always be accountable but should never be susceptible to any fear or pressure.

In Sagar Kumar versus District Judge, Moradabad, the Allahabad High Court observed that: “Article 235 of the Constitution of India vests control of the subordinate courts upon the high courts. The high courts exercise disciplinary powers over the subordinate courts.”

By establishing a system of deterrence and repercussions, judicial officers must be protected against false and malicious complaints.

The court went on to note, “In a series of judgments, this court has held that the high courts are also the protectors and guardians of the judges falling within their administrative control… Repeatedly, this court has cautioned the high courts that action should not be taken against judicial officers only because wrong Orders are passed.”

Judicial officers can effectively carry out their duties without fear, favour, affection, or malice only in an environment that supports them. For this reason, it is quite imperative to shield the subordinate court judges from the threat of baseless and fabricated accusations.

By establishing a system of deterrence and repercussions, judicial officers must be protected against false and malicious complaints. It is essential to establish a deterrent regime, which may involve imposing fines and costs on the complainant who maliciously filed the complaint to put pressure on the judge.

The higher courts are also equally responsible for protecting honest judicial officers and ensuring there is no kind of pressure on them so that the judges of the subordinate court may dispense their duties effectively in a positive environment.

Bhaskar Upadhyay is a penultimate year student at Dharmashastra National Law University.