Justice Akil Kureshi flags conflicting Supreme Court bail orders, expresses surprise at Saturday sitting to stay acquittal

Conflicting bail jurisprudence often emanates from the Supreme Court, which passes pro-bail, pro-liberty orders sometimes and suspends liberty at other times, former Rajasthan High Court Chief Justice Akil Kureshi said on Friday..In this regard, he highlighted the judgment in NIA v. Zahoor Ahmad Shah Watali, which he termed most 'unfortunate'.In that judgment, the Supreme Court had ruled that it is not permissible for courts to even engage in a detailed analysis of the prosecution case while considering bail under the Unlawful Activities (Prevention) Act (UAPA) and to weigh whether evidence adduced by the prosecution is sufficient or not."Bails are going to the Supreme Court, the highest constitutional court hearing bails. Plus they give conflicting judgments. [It passes] pro-bail judgments, but other times ,it is stayed and said to not be used as precedent. Watali judgment was most unfortunate," Justice Kureshi said..The former judge also expressed surprise over the Supreme Court sitting on a Saturday to stay the acquittal of GN Saibaba in October 2022."In complex issues, personal beliefs would play their part. But staying an acquittal on a Saturday. I do not understand. He could have always been re-arrested even. But meeting on a holiday to curb liberty?".Justice Kureshi made the remarks during a panel discussion titled Untangling Bail Cases, organized by Project 39A and Daksh. The discussion aimed to address India's bail system, its shortcomings and potential solutions moving forward.The panel discussion also involved Senior Advocate Rebecca John and was moderated by Prof Anup Surendranath, executive director of Project 39A, a criminal justice programme at National Law University, Delhi with a focus on death row prisoners..During the discussion, Justice Kureshi said that district courts many times refrain from granting bail in criminal cases for two reasons."One is they are put under constant pressure. That has been a serious complaint across the board I have heard. High Courts also sometimes doubt their intention, where the judges say they will pass a reasoned order. So we have to give them confidence. Today, High Courts do not have time, they are flooded.".Justice Kureshi further said that the judiciary's capacity to decide disputes could not be doubted when laws make it harder to grant bail. He cited the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act to underline that no anticipatory bail can be applied for."Not questioning Parliament's power to do that. But it creates distrust of the judiciary's ability to handle such cases, the wisdom behind such laws," he clarified..The discussion also touched upon the impact of laws such as the Prevention of Money Laundering Act (PMLA) and the Maharashtra Control of Organised Crime Act (MCOCA), which have made it more challenging to grant bail and easier to effect arrests. These legislative impediments have a chilling effect on the bail process, Justice Kureshi noted.