In this issue we shall discuss the issue of refusal of bail to white collar criminals. Should a Person be Jailed Before Conviction? We shall examine the views of Mr. Tulsi and Ms Kirna Bedi. Post your views
In this issue we shall discuss the issue of refusal of bail to white collar criminals. Should a Person be Jailed Before Conviction? We shall examine the views of Mr. Tulsi and Ms Kirna Bedi. Post your views
KTS TULSI SENIOR ADVOCATE, SUPREME COURT says Yes. Only if Severity of Crime Demands It .
His arguments:
1.Among all rights guaranteed by our Constitution, personal liberty is the most sacrosanct and perhaps the highest in scale of constitutional values. The Indian judiciary has zealously safeguarded liberty and has refused to wink or skip over the infringement of constitutional mandates on the ground of enormity of evil.
2. Criminal justice cannot be put into a straitjacket system for universal application. The question of grant of bail depends on a variety of circumstances, the cumulative effect of which must enter the judicial verdict. Justice Dalveer Bhandari, a senior judge of the Supreme Court, while sitting with another learned judge, Justice Radhakrishnan, delivered a landmark judgement on the right to bail and protection of personal liberty in December 2010.
3. According to Justice Bhandari, “the arrest should be the last option and it should be restricted to those exceptional cases where it is imperative.” If there is no possibility of fleeing from justice, if there are no prior convictions, if no prejudice is likely to be caused to free, fair and full trial, bail is the rule and arrest an exception. In cases where the entire investigation has been conducted without the police considering it necessary to arrest the accused, it is inconceivable as to how the arrest can be deemed necessary by the court after the charge-sheets are filed.
4. If during the investigation, the accused puts no hurdles in the way of the investigating agencies, it defies logic as to on what ground the investigators can entertain a reasonable apprehension that such accused may influence witnesses or tamper with evidence.
5.A person once arrested not only loses his liberty but also loses his dignity and suffers life long stigma. Arrest before trial is as dangerous to the constitutional values as detention without trial. Arrest before trial should be confined only to cases where the accused is such a menace to society that his being outside the jail is a risk to the safety of civil society or if he or she is likely to flee from justice. In all other cases, the arrest should follow the trial and not precede it.
KIRAN BEDI FORMER DGP & MAGSAYSAY AWARDEE says: Show No Mercy for White-Collar Crimes
1.The answer to the question whether should a person be jailed before conviction lies in how seriously one views the perpetrators of white-collar crimes of the dimensions of 2G, Commonwealth Games, plunder of state budget (Jharkhand) or siphoning of national wealth (Hasan Ali, et al). Are these cases of a blatant insult of faith and trust reposed by the people of the country or sheer banditry? The perpetrators of such crimes deserve no mercy. They have dared to become rich at the cost of the nation, its infrastructure, school facilities for poor children, healthcare for the marginalised, social security schemes, shortage of professional/educational institutions and schemes to minimise unemployment.
2. The country generates enough for all. But it is these fraudsters who dare to siphon off money and skim from hard-earned resources, leaving millions deprived. They have done this since Independence. But not anymore. Justly, the accused in the 2G spectrum scam and CWG frauds have been put behind bars for the “gravity of accusation”.
3. Additionally, white-collar criminals are comparatively more educated and craftier. They plan their crimes carefully to cover their tracks or trail. With money power and influence at their command, most of the cheats tend to dodge justice and succeed in perpetuating injustice. Which is why there is a general belief that white collar crime pays because it is low risk and fetches high rewards. Such people do not deserve bail, and it is better they remain inside the jail for day-to-day trial by special courts, preferably set up inside the jail premises, as is done in special cases to keep out all distractions. None of them should be allowed to fake health issues to go out to be in air-conditioned nursing homes. With early finalisation of the cases, the crime money too could be recovered and given to the rightful owners.
4.The message must be that loot of the national exchequer is the gravest of all crimes and anyone daring to do so will not be able to keep or transfer the proceeds of crime. The risk is his or hers. The accused will either come clean or become a convict.
What is your take? Is it not enough if the official is suspended and enquiry ordered?
We secular country do constructive partiality(reservation), immediate bail to murderer, reducing capital punishment to life imprisonment based on human rights, so mere suspending an official and ordering an enquiry is more than enough.
Should an undertaking that the accused will not influence witnesses be enough? Additionally a heavy security deposit can be taken.
We human beings tend to escape by hook or crook when we want to survive. So, mere understanding is not enough. Accused surely influence the witnesses.
For a millionaire (all Indian politicians of today, businessman) who do large scale financial crime (2G, CWG), mere few lakhs of security deposit is not enough.
Will it not be a total ruin of he life f a person jailed and then the courts pronounce him not guilty?
Yes. So, in my opinion instead of jailing them mere house arrest should be fine.
Should old persons and women also be jailed in the ground that a prima facie case is made out?
On humanitarian grounds old persons and women should not be jailed with proper proportion of security deposit.
My views:
1. Bail is not a right. It is a discretion vested in the wisdom of the trial court.
2. White collar crime involves corruption. Corruption is also a violation of human rights. If money meant for welfare is siphoned off, why show leniency?
3. Our police system is not truly independent. CBI is also not fully independent. How do we make sure that white-collar-crime accused don’t influence the police? Are not many of the corporates hand in glove with politicians?
4. We don’t have a witness protection system in place. The whistleblowers act hardly exists even on paper. RTI activists are murdered in broad daylight. What guarantee do we have that evidences will not be tampered with, if white collar crime accused are let out on bail?
5. One of the judgments of our Hon’bl Supreme Court has included ‘Right against handcuffing’ under Art. 21:Right to Life. The police+investigative agencies work not only under enormous political pressure but also with substandard equipment, are usually understaffed and now, with very low morale. Will they be able to do a good job? Former IMF Chief Strauss-Kahn was handcuffed by New York Police when he was arrested after being accused of rape charges, but in our country it is the opposite. Time we talked more about improving police force, law and order, protecting victims, witnesses and not just about human rights of criminals.
6. And why talk only about corporates who were denied bail. Why isn’t anyone talking about thousands of undertrials languishing in Tihar and elsewhere- who lack access to good lawyers and spend a lifetime ‘under trial’..?