THE GIST of Editorial for UPSC Exams : 10 September 2018 (Bail over jail: on due process)

THE GIST of Editorial for UPSC Exams : 10 September 2018 (Bail over jail: on due process)

Mains Paper: 2  | Governance
Prelims level: On due process
Mains level: The chain of arrest, custody, and remand must be linked only by due process 

Introduction :

  • The power of arrest is an extraordinary one, conferred on the police to be employed with discretion and deliberation.
  • It is not as a tool of oppression and harassment at the hands of prosecuting authorities or the government of the day.
  • The Supreme Court has emphasised that arrests should never be a reflexive response to an allegation of an offence, or even its commission. 
  • The law that empowers the police to arrest people without warrants (Section 41 of the CrPC) is reasonably stringent.
  • Its demanding that some conditions be met, including that such arrests be carried out to prevent commission of further offences, tampering of evidence, and influencing of witnesses.

Political consequences :

  • Mr. Yadav was let off, but in most cases arrests without warrant follow a dishearteningly familiar course, with the accused sent to custody after the police oppose bail. 
  • In this prosecutorial ecosystem, jail succeeds in trumping bail almost every time and magistrates, who are empowered to refuse remand and grant bail, continue to issue orders mechanically.
  • Tamil Nadu was witness to another high-profile example of this recently, when a student was arrested and remanded to 15 days judicial custody (before eventually being let off on bail) for political sloganeering on an aircraft; 

Way forward 

  • The dilemmas over maintaining the right balance between individual liberty and the interests of society invariably become more acute when the charges against the accused, well-established or otherwise, are serious. 
  • The recent and shocking arrests of activists, over their alleged links to Maoists, have focussed attention on the severe restrictions on bail when booked under the Unlawful Activities (Prevention) Act. 
  • The prosecution has 180 days to file a charge sheet, a period during which bail is routinely denied. 
  • And after the charge sheet is filed, bail is extremely difficult to secure, dependent as it is on the accused establishing his or her innocence, a reversal of the usual burden of proof. 
  • If the Supreme Court decides that justice will be secured only by its intervention in the case.
  • It will probably be forced to invoke its extraordinary powers under Article 142 of the Constitution, another reminder of the need to break the customary chain of arrest, custody and remand.

UPSC  Prelims Questions: 

Q.1)  1. Free and fair elections are the key to functioning of a vibrant democracy. Consider the following statements regarding elections in India and identify the correct ones.
1. Ballot papers with name of all candidates in a constituency were used for elections in India since Independence.
2. This method was replaced by Electronic Voting machines starting from end of 1990s.
3. Independent India’s first election was the largest of such an exercise in the world till then.
a) 1 and 2 only
b) 1 and 3 only
c) 2 and 3 only
d) All of the above

Answer : C  

UPSC  Mains Questions:
Q.1) What is the difference between 'due process of law' and 'procedure established by law?

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