Should A Woman Be Granted Bail Solely Based On Her Gender?

Grant of bail in respect of non-bailable offenses lies within the discretion of the court. One of the key provisions guiding this discretion is Section 480 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) or the erstwhile Section 437 of the Code of Criminal Procedure,1973. This section stipulates that when a person accused of committing a non-bailable offense is arrested or produced before a court other than a High Court or Sessions Court, bail shall not be granted if there are reasonable grounds to believe that such person has committed an offense punishable with death or imprisonment for life; has been previously convicted of an offense punishable with death, imprisonment for life, or imprisonment for seven years or more; or has been convicted at least twice for offenses punishable with imprisonment for three years or more but less than seven years.

However, the section is qualified by a proviso which states that these restrictions may not apply to certain classes of persons who are children, women, and people who are sick or infirm. Similar proviso is also found under Section 45 of the Prevention of Money Laundering Act (PMLA).

This article examines whether the word “may” in these provisions should be interpreted as “must” or “shall,” and how the judiciary has approached the grant of bail to women in light of this language.

1. Interpretation Of Word 'May'

According to Craies on Statute Law (Seventh Edition) page 218 states as follows:

"The effect of an excepting or qualifying Proviso according to the ordinary rules of construction is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it, and such a proviso cannot be construed as enlarging the scope of enactment when it can be fairly and properly construed without attributing to it that effect.

The honourable Supreme Court while dealing with the interpretation of the word 'may' in State of U.P. v. Jogendra Singh[1] held that

It is well- settled principle that the word 'may' can be interpreted as 'shall' where a discretion is conferred upon a public authority coupled with an obligation, as the legislature may use the term 'may' out of deference to the high status of the authority upon whom the power and corresponding duty are intended to be imposed.

While upon scrutiny of provisions contained in the relevant sections, the Allahabad HC in Pramod Kumar Manglik v. Sadhna Rani[2] noticed the intentional use of the word 'may' in Sub-section (1) of Section 437[3] New Code and of the word 'shall' in three of its sub-sections, then again using the word 'shall' in Section 436[4]and the word 'may' in Section 439[5] and held that Legislature has consciously made a distinction in choosing the respective verbs in the various provisions. It has used the auxiliary verb 'shall' where it desired the provision to be mandatory and has used 'may' where it wanted the matter to be left to judicial discretion. It also noted that the requirement to provide reasons while releasing persons under sub-section (4), to persons who would otherwise not be entitled to bail, itself indicates that the proviso is discretionary rather than mandatory. This Position was emphasized in rejecting the bail application by the Kerala HC in the infamous Jollyamma Joseph v. State of Kerala[6]

While dealing with Similar enactment in Section 45(1) of the PMLA Statute, the Honourable Supreme Court in Saumya Chaurasia v. Enforcement Directorate[7], held that

The use of the expression "maybe" in the first proviso to Section 45 indicates that the benefit of the said proviso to the category of persons mentioned therein may be extended at the discretion of the court considering the facts and circumstances of each case, and could not be construed as mandatory or obligatory on the part of the court to release them. A similar benevolent provision for granting bail to the category of persons below the age of sixteen years, women, sick or infirm has been made in Section 437CrPC and many other special enactments also, however by no stretch of the imagination could such provision be construed as obligatory or mandatory, otherwise all serious offenses under such special Acts would be committed involving women and persons of tender age below 16 years.

2. Legislative Intent Behind Enacting The Proviso

The legislative intent behind enacting the said proviso has been discussed in Satender Kumar Antil v. CBI[8], wherein the Supreme Court observed that

“Proviso to Section 437 of the Code mandates that when the accused is under the age of sixteen years, sick or infirm or being a woman, is something which is required to be taken note of. The court has to satisfy itself that the accused person is sick or infirm. In the case of women, the court is expected to show some sensitivity. We have already taken note of the fact that many women who commit cognizable offenses are poor and illiterate. In many cases, upon being young they have children to take care of, and there are many instances when the children are to live in prisons. The statistics would show that more than 1000 children are living in prisons along with their mothers. This is an aspect that the courts are expected to take note of as it would not only involve the interest of the accused but also the children who are not expected to get exposed to the prisons. There is a grave danger of their being inherited not only with poverty but with crime as well”.

The Supreme Court in the case of Saumya Chaurasia v. Enforcement Directorate[9] observed that the court needs to be more sensitive and sympathetic towards the category of persons included in the proviso of Section 45(1) of PMLA and similar provisions in other acts, as the persons of tender age and women who are likely to be more vulnerable, may sometimes be misused by the unscrupulous elements and made scapegoats for committing such crime.

a. Whether the said proviso protects only the women who are poor, illiterate, and vulnerable

According to Section 45(1) of the Act, a person accused of an offense under this Act shall not be released on bail unless the Public Prosecutor has been allowed to oppose the application, and the court is satisfied that the accused is not guilty of the offense and is not likely to commit any offense while on bail. According to the position held in Gautam Kundu v. Directorate of Enforcement (Prevention of Money-Laundering Act)[10], proviso to Section 45(1) of the PMLA carves out an exception from the rigors of Section 45 for persons who are sick or infirm. Once a person falls within the proviso of Section 45(1), he need not satisfy the twin conditions under Section 45(1). Delhi High Court in the case of Devki Nandan Garg v. Enforcement Directorate[11] noted that a bare perusal of the Statement and Objects and Reasons of the PMLA goes to show that inclusion of the above conditions for the grant of bail as a proviso to Section 45(1) of the PMLA elucidates the legislature's intent to incorporate relaxations for persons below sixteen years of age; a woman; or one who is sick or infirm.

In the case Preeti Chandra v. Enforcement Directorate[12], the court observed that relaxing the twin conditions of Section 45 of PMLA is in furtherance of Article 15(3) of the constitution, the court also noted that:

PMLA does not define a "woman". It is neither the intention of the Constitution of India nor the intention of PMLA to classify women based on their education and occupation, social standing, exposure to society, etc. It is also a settled principle of interpretation that while interpreting a statute and/or a section, the courts are not to substitute add, or subtract words from the section. The same would be amounting to supplanting the intention of the legislature.

The court also held that such beneficial legislation in favour of a class of persons, should not be constructed narrowly and there is no intelligible difference in classifying women based on their education, occupation or social stature. Classifying woman bereft of any intelligible differentia would be anathema to the fundamental right to equality under Article 14 of the constitution.

The Supreme Court in KALVAKUNTLA KAVITHA Versus DIRECTORATE OF ENFORCEMENT ^[13]

In this Case Court went further and held that when the Statute mandates special treatment for a class of accused, the court will have to come to a specific reasoning for denying the same benefit.

b. Does the benefit of this proviso extend to applications for anticipatory bail?

In the case of Satender Kumar Antil v. CBI [14], noted that it is welfare legislation, a purposive interpretation giving the benefit to the needy person being the intendment is the role required to be played by the court and hence there cannot be a divided application of proviso to Section 437[15] while exercising the power under Section 439[16](Granting of bail by a court of Sessions or High Court). In the aforementioned case, the court did not address the applicability of the said proviso in the context of anticipatory bail. However, the Delhi High Court, in Sushma v. State (NCT of Delhi)[17],observed that the power to grant pre-arrest bail under Section 438[18] of the CrPC is extraordinary and must be exercised sparingly. It emphasized that such relief cannot be granted as a matter of routine. While the benefit of the proviso to Section 437 of the CrPC which permits leniency in granting bail to women, or to those who are sick or infirm, may be available in regular bail proceedings, this benefit does not extend to anticipatory bail applications.

c. Does the scope of the proviso include trans women and other gender identities aligned with womanhood?

The Supreme Court in the case National Legal Services Authority v. Union of India[19], held, that Article 14 does not restrict the word "person" and its application to male or female and Article 21 guarantees the protection of the "personal autonomy" of an individual. Self -determination of gender is an integral part of personal autonomy hence self -expression falls within the realm of personal liberty. The Court in this Landmark judgment recognized the "psychological test" in the determination of sex and gender instead of the "biological test"

In Bharatiya Nyaya Sanhita, 2023

Section 2(19) “man” means male human being of any age;

Section 2(35) “woman” means a female human being of any age;

In the context of the recently enacted penal legislation and laid judicial pronouncements, the scope and implication of this inclusion are yet to be authoritatively interpreted by the courts.

General principles followed by the Courts from the plethora of judgments while granting bail to an accused are

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offense;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing if released on bail;

(v) character, behavior, means, position, and standing of the accused;

(vi) likelihood of the offense being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.”

The triple test for grant of bail requires that the following factors be taken into consideration:

(i) Whether the accused is a flight risk?

(ii) Whether the accused can tamper with evidence if released on bail?

(iii) Whether the accused can influence witnesses if released on bail?

Supreme Court in the Case of Saumya Chaurasia v. Enforcement Directorate[20], the court rejected the applicant's bail plea on the ground that there was sufficient material to establish a prima facie case of money laundering against the applicant, and no evidence was produced to rebut this presumption. Accordingly, the special benefit contemplated under the proviso was denied.

Delhi HC in the case of Preeti Chandra v. Enforcement Directorate[21], while granting bail to the applicant who is a woman observed that for the persons falling under the proviso of Section 45(1), they need not satisfy the twin conditions under Section 45(1) However, this does not mean that the applicant will not be required to satisfy the triple test for the grant of bail.

Delhi HC in the case of Meenu Dewan v. State[22], observed that the general principles governing the grant of bail, as outlined above, operate as overriding considerations under both Sections 437(1) and 439(1) of the CrPC. It has further been held that the cause of public justice must be zealously safeguarded, often outweighing the rights of the accused. While deciding on the question of bail, the court must take into account not only the rights of the individual but also the broader interests of society and the integrity of the justice system. Accordingly, where the offense is grave affecting vital societal interests and adversely impacting the social and familial fabric the nature and severity of the offense become significant factors in determining whether bail should be granted or denied.

Similarly in the infamous Jollyamma Joseph v. State of Kerala[23], case considering the heinousness of the murder of 6 persons and the prima facie allegations of petitioner's involvement in it, she was denied the benefit of proviso

Whereas in the case of Amanjot Kaur v. State of Punjab[24], While granting bail to a pregnant woman accused under the NDPS Act, the court observed that giving birth in custody would be a traumatic experience for both the mother and the unborn child. Accordingly, bail was granted irrespective of the gravity of the allegations.

Similarly, the Bombay High Court in Simpy Bhardwaj vs Union of India[25], while granting the benefit of the proviso to Section 45(1) of the PMLA to a woman accused, observed that one of the relevant considerations was that the applicant is the mother of a six-year-old child who requires her care and companionship.

As observed by the Supreme Court in Saumya Chaurasia v. Enforcement Directorate[26],while courts need to be sympathetic and sensitive towards the class of persons mentioned in the proviso, they should not be oblivious to the fact that women either advertently or inadvertently engage in illegal activities, hence while granting the benefit of proviso court must exercise its discretion judiciously using their prudence having regard to the facts and circumstances peculiar to each case and the other statutory provisions governing the grant of bail

Views are personal.