The Law Commission of India in its 268th Report, has recommended a slew of reformative measures with respect to the existing bail laws.

The Report appears to be dressed up in pro-poor rhetoric with a host of suggestions to amend the Criminal Procedure Code.

The Commission has advocated early release of undertrials on bail languishing in Indian jails. The Report is of great significance, because if it is accepted it shall affect the fate of approximately 2.83 lakh undertrials (out of 4.16 lakh prisoners) in the country.

The Commission recommends amendment of Section 436A to facilitate release of undertrials who complete one-third of the maximum sentence for offences up to seven years.

It has also prescribed introduction of a new legal provision for remission for those undertrials who have endured the full length of the maximum sentence for the offence committed for trial.

It further recommends that undertrials who are unable to produce non-monetary surety (undertaking by individual that the undertrial will appear before authorities when required) be allowed to, instead deposit government identity documents such as Aadhar, voter I-card or PAN card to get bail. Introduction of the “Electronically Monitored (EM) bail” in India, to ensure the accused cannot flee and a time frame to decide bail pleas by the lower courts are some of the welcome suggestions clothed with new prejudices and preferences.

The Commission laments with the age-old adage, “Laws grind the poor, and rich men rule the law.” It is critical of the present system of bail perceived to be heavily influenced by economic status and discriminatory against the impoverished and the illiterate.

The Commission’s hypothesis is that the Indian judicial system has evolved two approaches to bail – bail as a right for the financially able via-a-vis bail dependent on judicial discretion for the rest. The Indian judicial system is skewed against the poor and marginalised.

The Supreme Court, through a series of observations, has observed that the judiciary was ignoring the common man while giving priority to the rich, powerful and influential in hearing cases. It has called for serious introspection in this regard.

Recently, an Apex Court bench observed that, “We can say on oath that only five per cent of the time is being used for common citizens, whose appeals are waiting for 20 or 30 years.

This court has become a safe haven for big criminals. You come here for the sixth or eighth time for anticipatory bail and we should hear as if we were a trial court." Many legal experts are of the opinion that hearing pattern in most courts change when petitions of the rich and powerful come up Justice is justly represented blind, because she sees no difference in the parties concerned.

She has but one scale and weight for rich and poor, great and small. But an ordinary litigant feels that unless he has money and influence, he does not get justice. Years pass – his feet become weary, his spirit is broken, yet the hearing keeps getting postponed and the fruits of the litigation elude him like a mirage. On the other hand, with economic power and influence, the rich and influential hire the best lawyers to defend their cases, hire the most prestigious psychiatrists to certify them to be innocent by reason of insanity. The propensity to circumvent the law enforcement apparatus and defy the law is writ large.

They can appeal for years in the court system to insulate themselves from the social control and the rigours of the law. Being part of the upper echelons of society they will find themselves more gently, loosely and constructively policed than people at the bottom rungs.

Many may get mildly convinced but a two-tier justice system is in action which is reflected in countless cases. In many few high-profile criminal trials bail is given with great alacrity. Salman Khan was enlarged on bail hours after being convicted in a hit and run case.

The High Court went out of its way to hear his bail plea on the date of conviction. Sanjay Dutt managed to be in and out of jail, despite being convicted of serious charges under the Arms Act.

A Manu Sharma gets several opportunities for parole which is all but impossible for an ordinary prisoner to even dream of. The Patna High Court acquitted Pappu Yadav (named in Purulia arms drop case and convicted by CBI court to life imprisonment) citing lack of evidence. Similarly, a former Chief Minister of Bihar convicted in multicrore fodder scam for five years, got bail after spending just two and a half months in jail.

A former cricketer and comedy show host convicted of murder associated with road rage, has been able to get his conviction stayed to allow him to contest the 2007 Lok Sabha elections from Amritsar and thereafter to become a minister in Punjab.

The list is very long. The Uphaar fire tragedy case is the classic case wherein the judiciary sought to commute the reduced sentence of one year to sentence already undergone (less than six months) for the owners in lieu of Rs 60 crore for setting up a trauma centre.

These developments often compel an ordinary mortal to lose faith in the system. In fact, the pro-rich bias as observed by the Law Commission needs to be dispelled.

The principle of ‘Rule of Law’ which provides strength to the democratic structure must be allowed to prevail. Public perception may get swayed by extraneous considerations, but it is imperative to demonstrate that the legal system does primarily consider the legal merits of a case above any other identifiable social, political and economic factors so that it confirms to the aphorism not only must justice be done, it must also be seen to be done. It is time to reaffirm Fiat justitia ruat Caelum, which means 'Let justice be done, though the heavens fall'.

The writer is an advocate, Supreme Court of India.