“A dissent in a court
of last resort is an appeal to the brooding spirit of law, to the intelligence
of a future day when a later decision may possibly correct the error into which
the dissenting justice believes the court to have been betrayed.” ― Justice Charles Evans
Hughes
History has always been very kind in
referring the life time events. Being a student of law, Corona Virus was
something like blessing in disguise for the under trial prisoners. Although we
don’t find room for such orders but we always need to make room for situations
which could have devastating effects on the life of people. I can witness many
cases where the poor suffer and the rich gets relief in our judicial system.
The very much awaited relief which the court wants to give to the prisoner,
sometimes due to a lot of factors is delayed hence denied. Without naming or
pointing out characters, we as a whole need to step forward for the rights of
the weakest class of a society i.e. prisoners. Superior courts had always spoken against high
bail bonds for poverty stricken accused person and had recommended their
enlargement on bail on personal bond and even without sureties, today millions
of people are jailed pending trials because they are either too illiterate to
apply for bail or too poor to furnish the bail amount.
Purpose of Bail
The
basic purpose of bail is to give custody of the accused person to the surety to
make sure that the accused person will appear before the trial court. For this
sole purpose the accused who are unable to arrange surety or sometimes their
circumstances don’t allow the court to grant this relief to the accused person
remain in judicial custody as the state is responsible for their appearance
before the court. This means that tax payer money is responsible for the whole
stay of the accused person in the prison which includes all the basic
facilities to which he is entitled unless he is given bail or the trial
concludes.
Bail as a form of Punishment
We have totally changed the dynamics of
this relief and in fact this relief itself has become part of punishment.
Chapter 3 of Pakistan Penal Code 1860 deals with different kinds of punishments
which can be given to an accused person. However, I was unable to figure out
the punishment given to an accused, in form of his imprisonment in jail, who is
pronounced innocent after trial. Why, how and who can be blame is a Pandora box
which will only complicate the situation instead of addressing the issue and
finding the solution.
Bail on Corona Virus Ground
Legally speaking there are different forms
of bails to which an accused person is entitled. However, the discretionary
relief of bail on the ground of Corona Virus is itself an exception to all
those categories. Corona Virus is a deadly incurable disease but still this
bail cannot be said to be granted on medical grounds. Therefore, we need to
find the legal footing of this stupendous decision taken by the Honorable
Court. This decision of the Honorable court is more than a step towards
betterment of our criminal justice system where reformation of prisoner was the
basic purpose of establishing Jails. However, with the passage of time it has
become a place to level scores between parties. Even sometimes the state itself
is a party to such heinous crime. Our Judicial standards in human rights are
uniformly pathetic and secondly that judges are universally unwilling to punish
prison officials and policemen. However, it is the basic duty of the court to
make sure that the basic purpose of keeping the inmates behind the bars is
properly served. The state took the custody of the UTP to make sure that they
will produce them on every date before the trial court for proceeding with the
trial. However, there are circumstances when the proceedings are adjourned due
to unavoidable conditions, as in the present scenario of health emergency. For
such conditions there is provision to adjourn proceedings as the inmates cannot
be kept in judicial custody for the sole purpose of trial and on the other hand
the state is unable to procure the attendance of the inmates before the court
for trial. For such conditions where the state is in state of emergency and the
trial proceedings itself are a question mark, the proceedings can be adjourned
or postponed. The legislature has used the word, “any reasonable cause, it becomes necessary or advisable to postpone
the commencement of trial” clearly fits in to the present scenario. There are
plethora of dictums of the superior courts which somehow also support the gist
of this order. This order has clearly shown that the real power of the constitutional
courts and purpose of making such courts. The extra ordinary jurisdiction is
intended primarily, for providing expeditious remedy in a case where the
illegality of the impugned action of an executive or other authority can be
established without any elaborate enquiry into complicated or disputed facts.
Conclusion
The representative of the government is
very much admitting that the population of the jail is beyond their control. No
one can come up with a policy to reduce number of inmates as it involves a lot of
questions. Questions of law and facts involving rights of people and duty of
state. Prison Rules have mentioned all the procedures to be adopted to deal
with such like situations. However, no such step was taken by the government
neither any plan was presented instead of showing their will to reduce the
inmates with a magic stick. Giving priority to health over safety needs some
parameters. We did move ahead but there should be parameters or guidelines for
such pandemic conditions.
