In a recent exclusive interview with India Today TV’s Preeti Choudhary, Justice Sanjay Kishan Kaul, a distinguished former judge of the Supreme Court of India, expressed his concerns regarding the current state of bail jurisprudence in the Indian judiciary. Justice Kaul, who retired from the Supreme Court in the third week of December 2023, highlighted several critical issues in the way bail is being handled in courts.
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Justice SK Kaul emphasized the problematic nature of substituting the period of custody for actual conviction. He stated,
“It can’t be that we may or may not get a conviction, so let’s keep the person behind bars.”
He pointed out that the primary objective of custody should be to prepare a case within legal parameters, ensuring that the accused does not influence the trial. However, he strongly objected to prolonged periods of custody, arguing that if a trial is ongoing, the accused should be granted bail. He underlined the importance of not depriving an individual of their rights, especially when there’s a possibility of no conviction.
“How do you compensate him for the period he was in custody?”
he questioned, challenging the evolving culture that seems to treat jail as the rule and bail as the exception.
Addressing the issue of bail denials becoming increasingly common, Justice SK Kaul expressed his disappointment that the principles laid out in various judgments by the Supreme Court have not been adequately implemented at lower levels of the judiciary. He described the denial of bail in cases where it is deserved as “intellectual dishonesty,” advocating for the right of every individual to bail.
Justice SK Kaul also commented on the role of premier investigating agencies like the CBI and the ED, emphasizing the need for their work to be of the highest order. He discussed the challenges in cases of economic offences, where trials often get delayed, and the accused remain in custody. He suggested that courts should control proceedings to prevent unnecessary adjournments, while still allowing the accused a fair chance to defend themselves.
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Regarding his post-retirement life, Justice SK Kaul shared that he does not aspire to any government post, preferring to lead a private life. He expressed his desire to spend time with his family, travel, focus on his health, and enjoy time in Kashmir, his place of origin. When asked about judges accepting government appointments post-retirement, he stated that it should be an individual’s decision, respecting the constitutional position of a judge to make such choices.
Justice SK Kaul’s insights offer a critical perspective on the current state of bail jurisprudence in India, highlighting the need for a more balanced and fair approach in the judicial process. His views underscore the importance of upholding the rights of the accused while ensuring the integrity and efficiency of the legal system.
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