“In our criminal justice system, the process is the punishment. From hasty, indiscriminate arrests to difficulty in obtaining bail, the process leading to the prolonged incarceration of under trials needs urgent attention… It is a grave issue that 80 per cent of the 6,10,000 prisoners across the country are undertrials…..time has come to question the procedures which result in such prolonged incarceration without trial” — Chief Justice of India, Mr N V Ramana.
Wiser words have not been spoken, certainly not in recent times by the top judge of the country. Mr Justice Ramana had practiced law for 17 years and has been a judge for 22 years. He is not a stranger to what goes on in the courts in the name of ‘dispensing criminal justice’. He must have also interacted with families of accused, lawyers, civil society activists, journalists and concerned citizens and heard hundreds of tragic stories. The purpose of this essay is to share some stories with you.
In Prison without Trial
In current times, there is no story more shocking than the story of the 16 accused in what is known as the Bhima Koregaon case. On January 1, 2018 — as on that day every year — there was a gathering (consisting of members of Dalit organizations) at Bhima Koregaon to mark the 200th anniversary of the Battle of Bhima Koregaon. There was violence and stone-pelting on the gathering by a crowd, allegedly instigated by right-wing groups. One person died and five were injured. The investigation by the state government (BJP) took a curious turn. On June 6, 2018, five persons, all sympathetic to the Dalit and left-wing causes, were arrested by the state police. More arrests were made in the following months. Among the arrested were a lawyer, a poet, a priest, writers, professors and human rights activists. After the elections in 2019, a coalition government (non-BJP) took office. Responding to allegations of biased investigation, the state government decided to constitute an SIT to re-visit the case. Within two days, the central government (BJP) intervened and transferred the case to the NIA! Despite multiple petitions, the accused were denied bail. Fr. Stan Swamy, an 84-year-old Jesuit priest, died in jail on July 5, 2021. Only Mr Varavara Rao, the 82-year old renowned poet, is out on interim medical bail since September 22, 2021.
Sharjeel Imam, a PhD student of JNU, was arrested for two speeches he delivered at Jamia Millia Islamia and AMU in December 2019 during the anti-CAA agitation. Besides the case in Delhi, he faces charges in Assam, UP, Manipur and Arunachal Pradesh. He has been in jail since January 28, 2020, and denied bail. Umar Khalid, a former student of JNU and activist, was arrested on September 14, 2020 in connection with the riots in February 2020. He has been denied bail. Siddique Kappan, a well-known journalist from Kerala, was arrested when he was on his way to investigate and report on the Hathras (U.P.) rape case. He has been in jail since October 5, 2020, and denied bail.
What is the Law?
The point of this essay is not whether the charges are false or true. The point is, why are the accused denied bail? During investigation, the accused are pre-undertrials; when charges are framed by the Court, they become undertrials. Pre-charge evidence, framing of charges, trial and arguments will — not may, it is will — take many years. Should the accused be in jail until the trial is over? Is pre-trial incarceration a substitute for trial, proof, conviction and punishment? Is that the law of the country? If that is indeed the law of the country, should not the law be re-stated or should not the law be amended?
These are the questions that are behind the anguished statement of Mr Justice Ramana. The answers can be found in the law laid down by the Supreme Court. Over 40 years ago, in Gurbaksh Singh Sibbia’s case (1980), a Constitution Bench of the Supreme Court articulated the law: “the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception.” In 2014, in Arnesh Kumar’s case, the Court noted that the power of arrest is “largely considered as a tool of harassment, oppression and surely not considered a friend of public.” On January 29, 2020, another Constitution Bench in Sushila Aggarwal’s case cleared the cobwebs that had descended on Gurbaksh Singh Sibbia and Arnesh Kumar and re-affirmed the power and the duty of the courts to uphold the right to liberty: “it would be useful to remind oneself that the rights which the citizens cherish deeply are fundamental — it is not the restrictions that are fundamental.”
A Dark Blot
Yet, the power of arrest is being grossly abused. Alarmed, the Supreme Court has delivered a series of judgments curtailing the power to arrest, culminating in a definitive statement of law in Satender Kumar Antil’s case on July 11, 2022 and a thumping order in Mohammed Zubair’s case on July 20, 2022.
It is a sad commentary on the criminal justice system that despite these pronouncements the accused in the Bhima Koregoan case, Sharjeel Imam, Umar Khalid, Siddique Kappan and thousands of others continue to be in prison without being convicted. That is why, I believe, Mr Justice Ramana spoke.