The epilogue penned by Justice Sanjay Kishan Kaul in his concurring judgment in Re: Article 370 of the Constitution and the recommendation for a Truth and Reconciliation Commission was complimented by the Attorney General of India at the ceremonial bench held on the judge's last working day.

Justice Kaul has suggested the establishment of a Commission to investigate and report on the violations of human rights both by State and non-State actors perpetrated in Jammu & Kashmir at least since the 1980s.

The epilogue is testament to a judge who always envisioned justice beyond the black letter law. As I have reflected on Justice Kaul’s decisions and my personal experience of appearing before him in the Delhi High Court as a rookie lawyer in the very beginning of my career, I have learnt to appreciate the distinction between law and justice in actual play. It is easy to theorize about law and justice, yet to ensure that no injustice is being done while upholding law is a challenging task. Justice Kaul’s compassion for justice and for upholding the constitutional values of life and liberty are reflected in several of his judgments.

Justice Kaul is known to have practiced primarily in civil and commercial matters as a lawyer. As a judge in the Delhi High Court, his stint on the criminal side was relatively brief. However, the legacy that he leaves behind through his apex court judgments in criminal law is remarkable and indicates a focused attempt to give a human touch to criminal law.

No indiscriminatory arrest

In a series of judgments, Justice Kaul interpreted the Criminal of Procedural Code, 1973 (CrPC) to reduce the instances of persons being incarcerated at the whims of the investigative agency. He also took note of the tendency of magistrates to issue warrants of arrest even when not required.

In Siddharth v. State of UP, it was held that there is no mandatory requirement that an accused be arrested prior to taking the chargesheet on record. The insistence of trial courts on arrest of accused as a formality to take chargesheet on record was rejected as being contrary to the very intent of Section 170 of the CrPC. It was stated that personal liberty and reputation of a person are important aspects of constitutional mandate and that “merely because an arrest can be made because it is lawful does not mandate that arrest must be made.”

In Aman Preet Singh v. CBI, Justice Kaul added that in case a magistrate or court seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87 of CrPC that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. It was held that even in non-bailable offences, if the accused was not taken into custody during the period of investigation, it is appropriate that he is released on bail once the chargesheet has been filed.

In Satender Kumar Antil v. CBI, a Bench of which Justice Kaul was a part emphasized that the directions laid down in Arnesh Kumar v. State of Bihar be strictly followed in all offences where punishment is seven years imprisonment or less. He laid down that Sections 41 and 41A of the CrPC are facets of Article 21 of the Constitution and that any arrest in non-compliance of Section 41/41A CrPC would entitle the accused to bail.

Further, the Court mandated all states and union territories to facilitate standing orders to comply with Section 41/41A.

It was observed that even for a cognizable offence, the arrest of an accused is not mandatory and that an arrest in offences punishable with imprisonment below seven years or extending to seven years can only be made if the investigating officer is satisfied that there is a reason to believe that the accused committed the offence and that there is necessity for such an arrest.

Bail is the Rule

In Nikesh Tarachand Shah v. Union of India, it was held that Section 45 of the Prevention of Money Laundering Act (as it existed in the year 2017), which required twin conditions to be satisfied for grant of pre-trial bail, was unconstitutional and violative of Articles 14 and 21 of the Constitution of India. The judgment noted that Section 45 turned on its head the presumption of innocence which is fundamental to a person accused of any offence.

It was emphasized that before application of a section which makes drastic inroads into the fundamental right of personal liberty, the provision should further a compelling State interest to tackle serious crime. However, by way of statutory amendments and subsequent judgments, the law as pronounced in Nikesh Tarachand Shah has been obliterated, because of which getting bail in PMLA matters is a mirage for an accused.

In Satender Kumar Antil, Justice Kaul flagged the issue of streamlining the law on bail. He suggested the enactment of a Bail Act on the lines of the UK law. Various offences were classified in four categories and a slew of directions were passed regarding bail for each category. Specifically, even for offences covered under Special Acts, the provisions of Section 436-A of CrPC would apply, in the absence of any specific provision.

Thus, even for an offence alleged under Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), an accused was held to be entitled to bail if half of the sentence has been undergone as an undertrial. Amongst the directions issued, emphasis was given to compliance of Section 41 and 41-A of the CrPC. It was also held that there need not be any insistence of a bail application while considering applications under Section 88, 170, 204 and 209 of the CrPC.

The High Courts were directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with bail conditions. The verdict called for appropriate action to be taken in light of Section 440 of CrPC. Further, a similar exercise was directed to be undertaken to comply with the mandate of Section 436-A of CrPC.

Justice Kaul's involvement in these issues did not stop there. Satender Kumar Antil (supra) was listed regularly to ensure that it is being followed in letter and spirit and that a concerted attempt is being taken to prevent arrest and ease bail conditions.

When it was brought to the notice of the Court that certain judicial officers are not complying with the directions, Justice Kaul directed that the judgments in Siddharth and Satender Kumar Antil should be incorporated as part of the curriculum of state judicial academies and the National Judicial Academy.

Subsequently, he directed that High Courts should ensure that the subordinate judiciary follows the law of the land and if required, judicial work be withdrawn from magistrates who are not following the guidelines in Satender Kumar Antil. Ultimately, the Allahabad High Court was directed to withdraw judicial work from two trial court judges, who were sent to the judicial academy for training.

In several of his speeches, Justice Kaul disapproved of the practices in some High Courts of hearing bail applications ad nauseum and of passing lengthy judgments in bail applications. He consistently advocated that bail hearings and orders need to be brief and succinct.

The board of a criminal court need not be clogged up on account of lengthy hearings of bail applications akin to full-blown trials. He also lamented the fact that roughly one-third of the matters being filed before the Supreme Court were bail matters.

As Executive Chairperson of the National Legal Services Authority (NALSA), he launched the Under Trial Review Committee (UTRC) Special Campaign 2023. He publicly expressed concerns about the situation of undertrial prisoners in the following words:

“We could not have a scenario where we perceive that the only punishment that can be delivered is keeping people at the undertrial stage irrespective of whether the prosecution has the ability to get the conviction ultimately."

Triple approach of probation/compounding/plea bargaining

Justice Kaul’s approach was to apply criminal law for reformative objectives and not as retribution. In Lakhanlal @ Lakhan Singh v. State of Madhya Pradesh, he highlighted that the object of Section 360 CrPC is “to prevent young persons from being committed to jail, who have for the first time committed crimes through ignorance, or inadvertence or the bad influence of others and who, but for such lapses, might be expected to be good citizens.”

It was held that Section 360 of the CrPC is in addition to the provisions of the Probation of Offenders Act, 1958 and the Children Act, 1960. Thus, even if a person was above 21 years, he was entitled to probation. Similarly, in Samaul Sk v. State of Jharkhand, where the appellant was sentenced to three years of rigorous imprisonment under Section 498A of the Indian Penal Code (IPC), the sentence was reduced to the undergone period of seven months, in view of Section 357 of the CrPC. Justice Kaul took into consideration that the appellant was voluntary offering the amount to seek reduction of sentence. The amount was directed to be used for the complainant and two children.

Other issues considerably close to Justice Kaul’s judicial conscience were overflowing prisons and lengthy detentions of convicts in the absence of final hearing of appeals.

In Sonadhar v. State of Chhattisgarh, the Delhi High Court Legal Services Committee was directed to seek bail for convicts who have undergone (a) more than half the sentence in case of fixed term sentences or (b) more than eight years of actual custody where ‘life sentence’ has been awarded. In an attempt to reduce pendency and to ensure release, the Court also directed that where more than half the sentence has been completed, an endeavour be made to ascertain from convicts if they are willing to accept their infractions and agree to disposal of the appeals on the basis of sentence undergone.

Subsequently, it was directed that all persons who have completed ten years of sentence with no extenuating circumstances and whose appeal is not close to hearing, should be enlarged on bail. As a result of the directions passed by Justice Kaul, several convicts have got relief from the Delhi High Court instead of languishing behind bars.

In a suo motu writ petition, the Court provided suggestions for effectuating the provisions relating to plea bargaining/compounding/probation for convicts who are undergoing fixed term sentences and are in jail, and for the remission of sentence for such convicts. The Court noted that the total number of under trials recommended for release by the UTRC is 47,618.

Justice Kaul consistently nudged state governments to examine pending appeals under the Probation Rules. In the context of Uttar Pradesh, he advised preparing a list of cases where the person has served a sentence of fourteen years and is not a repeat offender. He ordered the State to consider granting bail in one go and to remit the matters for examination under the Uttar Pradesh Prisoners Release on Probation Rules, 1938. He held the view that there is a high possibility that if these people are released, they may not be even interested in prosecuting their appeals.

He further directed the UP government to take a stand in respect of such cases which are single offence cases and pending for ten years or more, and unless there are special circumstances, asked the government to enlarge all of them on bail. He suggested that for cases that meet the norms of remission, the state government, irrespective of the stage of pendency of the appeal, should be asked to take a call on the plea of remission.

Justice Kaul’s statement in Sudan Singh v. State of Uttar Pradesh, that “…to deny even bail to such a person for the fault of the counsel who does not argue, the accused having nothing to gain, would be really a parity of justice,” is a further reflection of his humane approach to criminal law.

He observed in Vipul v. State of Uttar Pradesh,

“a mere punishment without reformation would not serve the purpose as it might have the propensity of creating more such actions. The ultimate idea is to bring the convict back to the civil society. For this purpose, innovative solutions with respect to sentencing such as community service as an alternative may also be considered by the states/Union governments in due course.”

These are not merely paper statements; he took proactive steps to ensure that our fractured criminal law administration is corrected.

Our prisons are still functioning beyond their capacities, the threat of arrest looms large over people falsely accused of having committed crimes, courts show reluctance in granting bail by taking the prosecution’s version as gospel truth and criminal appeals take years to be heard. Further, laws criminalize more acts, and the criminal law process is often misused by the private and public entities. Thus, it is imperative that Justice Kaul’s compassion and humane approach is continued so that the process itself does not become a punishment to the common man.

Amit Gupta is an Oxford and Columbia University graduate practicing in the Supreme Court and the Delhi High Court.