JUDGMENT

KRISHNA IYER, J. (in Chambers) : — "Bail or jail?" - at the pre-trial or post-conviction stage - belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit court I have to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Art. 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Art. 21 are the life of that human right.

2. The doctrine of Police power, constitutionally validates punitive processes for the maintenance of public order, security of the State, national integrity and the interest of the public generally. Even so, having regard to the solemn issue involved, deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution.

3. What, then, is judicial discretion in this bail context? In the elegant words of Benjamin Cardozo : [1 Bovu. Law Dict., Rawles III Revision p. 885 - quoted in Judicial Discretion - National College of the State Judiciary, Reno, Nevada p. 14).]

"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains."

Even so it is useful to notice the tart terms of Lord Camden that [(The Nature of the Judicial Process - Yale University Press (1921)).]

"the discretion of a judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice, in the worst, it is every vice, folly and passion to which human nature is liable ..."

4. Some jurists have regarded the term judicial discretion as a misnomer. Nevertheless, the vesting of discretion is the unspoken but inescapable, silent command of our judicial system, and those who exercise it will remember that [(Attributed to Lord Mansfield, Tingley v. Dalby, 14 NW 145)]

"discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful, but legal and regular."

"An appeal to a judges discretion is an appeal to his judicial conscience. The discretion must be exercised, not in opposition to but in accordance with, established principles of law." [(Judicial discretion, (ibid) p. 33)]

5. Having grasped the core concept of judicial discretion and the constitutional perspective in which the court must operate public policy by