High Courts, Supreme Court should learn from Disha Ravi order; revert to Krishna Iyer J law on bail: Former Attorney General Mukul Rohatgi

The High Courts and Supreme Court, while dealing with liberty and bail cases, should take a leaf out of judge Dharmender Rana's order granting bail to Toolkit FIR accused Disha Ravi, former Attorney General Mukul Rohatgi told India Today anchor Rajdeep Sardesai on a TV discussion.

Rohatgi also lamented that the entire jurisprudence surrounding bail has been turned on its head in the last few years with the courts, particularly the High Courts and Supreme Court showing reluctance to grant bail.

Additional Sessions Judge Dharmender Rana of the Patiala House Court granted bail to activist Disha Ravi on February 23 in the toolkit FIR case on account of "scanty and sketchy evidence" against her.

In his 18-page judgment passed, the judge Rana pertinently held that "citizens cannot be put behind bars simply because they disagree with the government."

Rohatgi heaped praises on the bail order stating that it is a courageous and bold decision.

“I am very happy that a courageous and bold judgment has come from a District court. Full marks to the judgment and the court for keeping the flag of liberty flying,” he said.

Though presumption of innocence is one of the fundamentals of our Constitution, this rule has been given a complete go by in the last ten years, he added.

“Slowly since the 1980s, 90s and 2000s this rule of presumption of innocence was changed. Firstly, it was changed in terrorist cases. It was accepted by the Supreme Court because the security of nation is at stake. But in last 10 years, this rule of presumption of innocence has been given a complete go by in offences as petty as violation of GST Act,” he said.

Rohatgi said that the blame would lie on the Police for including serious charges even for petty offences.

“What I find is, it is a trigger-happy police who puts or pastes such serious offences like sedition or murder charge in an FIR. The moment that is done, the judge generally takes backseat and does not grant bail as soon as it should be granted,” he said.

But the police take instructions from political masters, Sardesai asked.

Rohatgi said that he did not want to get into that debate.

“It is the Police which creates the FIR, not the government. In simple cases which are punishable with say upto 5 years, it will put in a provision which will take the case to 10 years and then judges will think it is a very serious offence. Even in run of the mill cases, like say a car accident case, they include a charge for attempt to murder. Can you believe it?”

The judiciary, he said, now has a mindset wherein it takes a long time to grant bail by which time the accused would have already spent 30 to 90 days or even more in custody.

“They have allowed this kind of non-grant of bail to kind of become a punishment. 'Arre chalta hai, let somebody be in for 30 days, 60 days, 90 days. Let him get a taste of the medicine because 50 percent chance is that person will be acquitted.' Yesterday I read a report of a comment of the Supreme Court in which I appeared that this now seems to be the rule. That you have some taste of punishment as an undertrial which is completely illegal,” he said.

He also accused courts of passing the buck.

“We accuse bureaucrats of just pushing files and passing the buck. Now same thing is happening in the judiciary. The first court says, you go to District court. The District court says, you go higher up to High Court or Supreme Court, I won’t grant bail You must spend some time. This is the mindset now - Spend some time.”

Rohatgi maintained that the judiciary has to revert to the 1978 position laid down by Justice Krishna Iyer which mandates that bail should be rule and not an exception.

“He (Judge Dharmender Rana) has kept the flag flying, Higher courts should learn from this and come back to what Justice Krishna Iyer said in 1978 That is still the law. It has not been buried though not followed for the last few years,” he said.