Serve cows, wash women's clothes, tie rakhis: How bizarre bail conditions punish without trial

On June 2, the Allahabad High Court while granting bail to an accused, imposed a few bizarre conditions. It asked the accused to deposit Rs 1 lakh in favour of a registered gaushala or cowshed in Bareilly and to serve the cows there for one month.

Similar orders have been seen in the past, where courts have asked the accused to undertake tasks, such as plant trees or do community service or donate money to charity.

In many of these bail orders, there is an idea of reforming the accused at the stage level itself. Yet, these orders end up punishing the accused before their conviction, thus going against the principle of presuming the accused to be innocent until proven guilty. Several such orders have also been set aside by the Supreme Court and various High Courts.

Community service

In September 2021, a local court in Bihar gave bail to a washerman accused of molestation on the condition that he should wash and iron the clothes of all women in his village for free for six months. After doing this, he should obtain a certificate from the village sarpanch or any respectable public servant of the village and file it before the appropriate court, the judge said. The same judge also directed a man accused of outraging the modesty of women to clean drains as a bail condition. In another case, the same judge directed a person accused of transporting illicit liquor to pay for the education of five poor children for three months.

In July 2020, in more than 15 bail orders, a bench of the Madhya Pradesh High Court directed accused persons to “render physical and financial assistance” to government primary schools near their residences, LiveLaw reported. Apart from this, the High Court, in several instances, had asked accused persons to volunteer for Covid-19 help.

In another instance in 2019, a Ranchi court had asked a woman arrested for putting allegedly communal posts to donate five copies of the Quran to different libraries as a part of her bail condition. However, after protests and a request by the investigating officer, this condition was withdrawn.

Donate money

In several cases, courts ask the accused to donate money, usually for some charitable purpose.

In May 2020, in at least 17 bail orders, a single judge of the Madhya Pradesh High Court directed accused persons to deposit money with district collectors “for utilisation in preparation of food and its distribution to downtrodden persons including migrant labours, by any Government Agency/NGO,” LiveLaw reported.

The Jharkhand High Court, in April 2020, directed accused persons to donate Rs 35,000 each to the Prime Minister Citizens Assistance and Relief in Emergency Situations or PM-CARES Fund as a condition for bail. Along with this, it directed them to install the covid tracing Aarogya Setu App. This is another common bail condition seen in several cases.

In another instance, the Madhya Pradesh High Court asked an accused to purchase a “black coloured LED TV…worth at least Rs 25,000, manufactured in India or abroad, except China.”

Plant trees

Another common instance of unusual bail orders, courts have asked the accused to plant trees.

In April, the Madhya Pradesh High Court, in an attempt to murder case, put a bail condition that the accused has to plant 10 saplings of either a fruit-bearing tree or neem or peepal tree and secure them at their own expense.

In another order from March, the same bench directed a murder accused to plant five similar saplings, which should be “six to eight feet tall, so that they grow sooner” and fence them for protection. The court also directed the accused to submit photos of the saplings and submit a status report every three months for the next three years. Apart from that the accused was asked to download an app so that the High Court can monitor the saplings through geo-tagging.

While prescribing these conditions, the court clarified that the bail was being granted on merits and the direction for planting saplings was given thereafter. Still, it said that if these conditions were not followed, the bail would be canceled. In 2020, the Orissa High Court had also asked an attempt to murder accused to plant 100 saplings, after noting that there was no prima facie case made out against him.

Reforming the accused

The Madhya Pradesh High Court, while imposing the condition to plant saplings, said, “This direction is made by this Court as a test case to address the anatomy of violence and evil by process of creation and a step towards alignment with nature.”

“The natural instinct of compassion, service, love and mercy needs to be rekindled for human existence as they are innately engrained attributes of human existence.” These were given because the accused expressed a desire to do social service, it added. The court said the same thing in June 2020, when imposing similar conditions while granting bail.

In many such orders, the bail conditions are related to the crime the accused has been charged with, hinting at some possibility of the court wanting to reform the accused at the bail stage. For instance, in the Allahabad High Court bail asking the accused to serve at a gaushala, the accused was booked under the Cow Slaughter Act, 1955.

In another instance, the Madhya Pradesh High Court had granted bail to a person accused of harassing a woman on the condition that he ask the woman to tie a rakhi band and promise to protect her. This was set aside by the Supreme Court, where it also laid down guidelines for how courts should deal with sexual harassment cases.

Be off social media

In a few instances, courts have also asked people booked for putting objectionable statements against politicians to refrain from using social media as conditions for bail.

In 2020, the Madras High Court asked an individual who had put a Facebook post against Narendra Modi to not use social media for one year. The Allahabad High Court asked an accused to not use social media for two years. The Madhya Pradesh High Court put a two-month social media ban on an accused for “digital detoxification”. The Supreme Court has a petition pending on whether such bans are legal.

Guilty before trial

Barring certain exceptions, the law presumes that a person is innocent until proven guilty. Many of these conditions imposed, such as doing community service or donating money, would amount to punishing an individual for a crime for which she has not been convicted.

Section 437(3) of the Code of Criminal Procedure 1973 says that for certain offences, such as those carrying more than seven years of imprisonment or if they fall under certain sections of the Indian Penal Code dealing with offences against the state, human body and property, shall impose conditions that the accused shall not commit offences she is accused for, and shall not hamper the investigation or tamper evidence. Further, it says that the court may impose “in the interests of justice, such other conditions as it considers necessary”.

Further, Section 439 gives a High Court or a sessions court the power to impose “any condition which it considers necessary” for Section 437(3). These terms, such as “any condition” have been used by courts to impose bail conditions mentioned above.

Using these sections, courts try to impose bail conditions as they deem fit. However, higher courts have often set them aside. In May, while giving bail to Azam Khan in a land grabbing case, the Allahabad High Court put a condition that he has to fully cooperate with the measuring, walling and wiring of a property.

The Supreme Court said that the conditions imposed by the High Court for bail are “disproportionate and have no reasonable nexus to the conditions which are required to be imposed to secure the presence of the accused and to ensure that the fairness of the trial is not impeded”. The Supreme Court in several cases has held that bail should be given only to advance the trial process and that the purpose of bail, which is to secure the appearance of the accused, cannot be “punitive or preventive”.

In several cases fines that have been imposed have been set aside as well. Local courts in Madhya Pradesh and Kerala had directed accused persons to deposit money in the PM-Cares Fund, made for corona relief, as a condition for bail. However, this condition was set aside by the states’ high courts. Even the Jharkhand High Court had set aside a judicial commissioners’ order imposing a fine of Rs 60,000 to be deposited to the excise department. The High Court held that this fine was a punishment, which cannot be given, unless the guilt is proven.