Planting trees, digital detox, ironing clothes, different acts of community service, or getting Rakhi tied by complainants are some of the out-of-the-box conditions that have been imposed by courts. While the acts in themselves are innocuous, it takes on a different meaning when they are juxtaposed and positioned as bail conditions.
Earlier this year on March 18, the Supreme Court had set aside a July 2020 Madhya Pradesh High Court order that directed a man accused of a sexual offence to get Rakhi tied to him by the victim as a condition for bail.
The top court had observed that "there is a strong likelihood that such observations and directions may result in normalizing what is essentially a crime and has been recognized to be so by the law." The Supreme Court had then laid down guidelines courts must follow while granting bail in sexual assault cases.
Constitutional courts have often disapproved of and even set aside some of the more troublesome bail conditions which prima facie fly against the concepts of natural justice. In March 2017, the Madras High Court had criticized some of the 'odd' bail orders and had observed that such 'obnoxious' conditions must be avoided.
Apart from issuing the usual riders that come with bail, many judges have taken the opportunity to promote their pet causes like green initiatives, volunteering for COVID relief, contributing to the PM Cares fund or conditions which at best can be classified as promoting community service.
Also Read: SC Sets Aside HC's Tie 'Rakhi' To Accused Order; Issues Guidelines
BOOM analyses what some of the unusual or bizarre bail conditions could mean.
No Concept of Community service in law
Planting trees is one of the most common unusual bail conditions. Judges across high courts in this country have imposed this condition on individuals accused of various crimes ranging from sexual offences to murder convicts.
In another instance, Delhi HC judge Sanjeev Sachdeva showed leniency to young adults between the ages of 19-23 years and reduced their sentence provided they plant 50 trees. The condition was imposed in the case where young boys got into a fight while playing cricket which resulted in the death of one who was in the opposing team. The judge had agreed with the trial court's observation that there was no "intention to cause either any injury or to cause death and the dispute occurred while playing cricket on the spur of the moment and in the heat of the moment subject incident happened, which led to the unfortunate death of the victim…".
In February 2019 Justice Sunil Gaur of the Delhi High Court granted bail to a man accused of molestation provided he planted 50 trees in a government school in Delhi. The school's principal was directed to ensure that the tree plantation took place, and the investigating officer was asked to file a compliance report of the same. In June 2020, the Madhya Pradesh HC granted bail to a POCSO (Protection of Children from Sexual Offences Act) accused with the condition that he would plant "either fruit-bearing trees or Neem and Peepal" and nurture it. The accused was also directed to monitor "the progress of the trees because human existence is at stake because of the environmental degradation and Court cannot put a blindfold over any casualness shown by the appellant regarding compliance".
In India, there is no concept of community service. Reacting to these decisions, advocate Aparna Bhat told BOOM that "only the Juvenile Justice Act, 2015 stipulates community service." She said for crimes committed by adults, there is no concept of community service in the law books, it is judge-made law. "In the sense, the judge can direct community service as a bail condition. But this condition must be in consonance with the crime committed," Bhat said.
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Bail conditions cannot trivialise the offence
A judge at a local court in Bihar is making undertrials perform community service as part of their bail conditions. Men accused of sexual offences are being granted bail provided they perform community service like keeping the drain outside their house clean, washing and ironing clothes of the women in his village for six months free of cost or even providing education to underprivileged children.
"For example, the Madhya Pradesh High Court which directed a sexual assault accused to get Rakhi tied by the complainant was problematic because it appeared to trivialise the crime," Bhat said. The Supreme Court's March 2021 guidelines on bail conditions came on an appeal Bhat filed against the Madhya Pradesh HC Rakhi order.
The Supreme Court has ruled and often reiterated that bail is a rule, and jail is an exception. "Conditions imposed during bail must satisfy serve twin purposes: a) ensure the accused is available for trial, and b) ensure he does not interfere with the course of justice," Assistant Professor of Law at Sai University in Chennai Mahesh Menon told BOOM.
Referring to the conditions imposed Menon said there is no "legitimate objective or purpose these orders fulfill".
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Citizen has a right to not volunteer for noble causes
Since the onset of the pandemic in March 2020, several high courts and even some tribunals like the have directed accused to contribute to relief causes as a "COVID Warrior" or deposit money in Prime Minister Narendra Modi's – PM Cares Fund.
In one plea, Madhya Pradesh High Court judge Sheel Nagu granted bail on the condition that the accused who were "young/middle-aged/able-bodied responsible citizens", are "obliged to assist the government in times of this deep crisis".
However, even as the Gwalior bench of the high court often set contribution to the PM Cares Fund as a condition while releasing undertrials on bail, the Jabalpur bench of the Madhya Pradesh high court said such conditions were "unjust, irregular and improper".
The MP HC had relied on a Kerala High Court order which had made a similar observation.
"A judge cannot direct anyone to contribute to a good cause. Why? Because I have rights. Citizens of this country have every right to not be a good person," Mahesh Menon said. "I have every right to not volunteer for noble causes. Ultimately, I have a right to exist the way I want to as long as I am not breaking the law," he added.
"Seriousness or the non-seriousness of an issue is not the point. It is a matter of principle. The judge cannot take it upon himself to be the imposer of moral standards of behaviour," he added.
Digital Detox a violation of one's right to free speech
In a disturbing trend, judges are imposing curbs on social media as one of the bail conditions. Social media bans were observed in cases where individuals are accused of posting objectionable content on social media, protesting government laws, or making inflammatory speeches.
In September 2020, the Kerala High Court banned a rape accused of rape and circulating the victim's pictures on social media was banned from using social media till the probe was not complete. While granting bail, the high court added that if the probe found him guilty the social media ban would continue.
In July 2020, the Supreme Court issued notice on Congress leader Sachin Chaudhary's plea on whether a social media ban can be imposed as a bail condition. While issuing notice, then Chief Justice of India SA Bobde had orally observed the was not "too onerous". "If a person's participation on social media creates mischief, why can't the court say you don't use the instrument by which you caused mischief?" CJI Bobde had remarked.
However, even though the matter is pending before the top court, lower courts continue imposing such bail conditions.
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Irrelevant bail conditions violate the right to due process
In July 2019, a local court in Ranchi, Jharkhand withdrew its own contentious bail order directing 19-year-old Richa Bharti, accused of posting communal content and hurting religious sentiments, to distribute five copies of the Quran.
A judge attached with a local court in New Delhi directed 12 anti-CAA supporters to present themselves at a local police station for two hours during which time the Delhi Police would "endeavour to remove the doubts of the applicants in respect of CAA".
Madhya Pradesh HC judge once granted bail to a duo on the condition that they would purchase and install a "black coloured LED TV", not made in China at a local district hospital.
"Sexual Assault, dowry, crimes against children, and murder are serious offences. If someone is let out on bail with conditions, it must be so that they dont interfere with the course of justice. Extraordinary conditions may include imposing fines that would benefit the community or the complainant in the case. Judges can explore their creativity within the confines of the law," Aparna Bhat told BOOM.
"All such orders are illegal and do not serve any purpose. They simply violate the right to due process," Mahesh Menon said.
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