The decision to reject the bail plea of Umar Khalid calls for debate on the functioning of the judiciary.
Long ago, Justice Krishna Iyer, one of the greatest judges of this country, had defined, “The basic principle is bail, not jail, except in cases where there is evidence of attempts to flee the process of justice, to obstruct it or to commit repeated offences, to intimidate witnesses.”
Nowadays, Magistrates or District Courts or even the High Court do not care about the substantive principle in almost all cases of refusal to grant bail. Instead, the case is reviewed. In this case, it seems that the High Court, after looking at the 3,000 pages of charge sheet and 30,000 pages of electronic evidence, has concluded that the petitioner is prima facie guilty of a pre-planned conspiracy in the Delhi riots, that he had given inflammatory speeches and the trial is proceeding at a ‘natural pace’. This is a completely wrong judicial approach.
The judges have ignored the fundamental guarantee under Article 21 of the Constitution, which states that ‘no one shall be deprived of his life or personal liberty, except before established procedure of law.’
There was a major debate on this provision in the Constituent Assembly in December 1948. Pandit Bhargava had called it Magna Carta and said, “This is the only victory of the judiciary over the tyranny of the legislature. In fact, we want two safeguards for our freedom. One is the legislature and the other is the judiciary. But even if the legislature gets carried away by partisan sentiments and sometimes even panics, the judiciary will save us from the tyranny of the legislature and the executive.” He also hoped that ”in a democracy, the courts are the last refuge for the protection of the rights and liberties of the people. I want the judiciary to be established in its rightful place of justice and the people to be secure in their rights and liberties under its protection.
Were their expectations fulfilled? I don’t think so. In the implementation of constitutional and legal rights, the judiciary is increasingly leaning towards the executive and becoming anti-people. The basic principles of criminal jurisprudence have been forgotten. For example, “Every accused person is innocent unless and until the prosecution proves him guilty in a fair, just and equitable manner.” Now, on the contrary, the onus of proving his innocence is placed on the accused. The prosecution is very secretive, aggressive, often ineffective and often biased. His victims are usually people from marginalized and minority communities.
Freedom fighter, lawyer, educationist, writer K.M. Munshi had said, “It has been repeatedly said in this House that we want to establish democracy and the essence of democracy is that a balance should be struck between individual freedom and social control. We should not forget that the majority in the legislature is more in favor of social control than in serving individual liberty.” He feared, ”Unfortunately, in this country, legislatures with overwhelming majority are facing serious problems and there is a tendency to pass laws in a hurry which favors giving wide powers to the executive and the police.”
Even after seven decades of its establishment, our democracy is still struggling with these challenges. Munshi had then warned, “At this time of emergency, we have perhaps forgotten that if we do not widen the scope of individual liberty and do not give it the protection of the courts, we will create a tradition which will ultimately destroy any trace of individual liberty that exists in the country.” The present situation is witness to his words proving to be prophetic. Among our freedoms is also freedom of speech and expression. In this matter Professor KT. Shah had said, “Ever since the consciousness of civil liberties has come among the people, it has been the main battlefield of autocratic rulers and those who fight against them… The autocratic ruler, the dictator, always wants to silence those who do not agree with him, whenever he is unable to make any other argument. Therefore, whenever a person expresses even the slightest difference of opinion, creates even the slightest possibility of causing inconvenience or embarrassment, the autocratic power jails, arrests or detains such person without any charges or trial.”
After all, how did Professor Shah know in 1948 that today’s India would have to face such a situation? Munshi explained to him, “Now that we have a democratic government, a line should be drawn between criticism of the government and provocation. Criticism should be welcomed. Provocation is that which creates disturbance in civilized life or is done with the intention of overthrowing the state machinery…Actually the essence of democracy is criticism of the government.”
The protests against the Citizenship Amendment Act were in line with this understanding and were peaceful. But our judges do not understand the generality of these guarantees. They need to study these debates seriously to understand the Constitution of the country.
The Delhi High Court seems to have completely turned a blind eye as it completely ignored the inflammatory statements of BJP leaders in which the mob was openly incited to violence against Muslims. For example, “Now the protesters will have to be taught a lesson”, “Shoot the traitors of the country”, “Where there is no speech, there is shooting”, “Boycott the Muslims”, etc. Are these not all conspiracies or inflammatory statements? Did this not disturb social order and peace? Judges do not live in heaven. They should know how the police is working today. Justice Brennan’s famous statement is apt, “It is the deepest injustices that pierce the heart of man.” We can bear illness, but injustice fills us with the feeling of uprooting everything. If only the rich can enjoy law as a dubious luxury and the poor who need it the most cannot get it because its price is beyond their reach, then the threat to the existence of free democracy is not imaginary but very real. In fact, the basic foundation of democracy is to make the justice system so effective that every citizen believes in its impartiality and fair attitude and benefits from it.
This debate calls for a serious review and reform of the judicial system in many ways. Be it the selection and promotion of lower court judges or the appointment of judges to the High Court and the Supreme Court, or communication between all concerned parties including lawyers and litigants, communication between court registries, collaboration with IITs and IIMs to learn and improve case load management, all matters need reform.
Injustice is pervasive in India and the judiciary, except a few, is either unable or unwilling to remove it. In our system the rich and powerful can commit injustice and get away with it. The paramount objective of Article 21 is to prevent encroachment on an individual’s right to life and liberty. The Supreme Court said in 2011, “Personal liberty under this Article means the prevention of any person being imprisoned or detained.”
Lakhs of undertrial prisoners across the country are languishing in jails due to courts not granting bail. Speedy trial is such a hope, which can never be fulfilled despite all the promises of the Supreme Court. Therefore, denial of bail after a long gap of five years is nothing less than a thoughtless punishment. Given the dismal conviction rate in the country, it can be said that it is this courtly attitude on which the police and prosecution thrive. Meanwhile, as the Supreme Court said in a 1979 judgment, “Unfortunately, in our country, the poor are kept out of the judicial system. The poor have always been on the dark side of the law. The justice system has lost its credibility for the weaker sections.
The courts across the country, including the Delhi High Court, or rather the Supreme Court, have made little effort to regain that credibility and reform themselves.
(Former President of the Supreme Court Bar Association, views are personal)