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Freedom before conviction


In the recent past, we have seen Indian courts routinely denying bail to those accused under the Unlawful Activities Prevention Act (UAPA). Section 43D (5) of the UAPA empowers a court to deny bail where it is of the opinion that there are reasonable grounds for believing that the accusation against a person is prima facie true. What are reasonable grounds? How are courts to decide whether an accusation is prima facie true or not? In the absence of any set standards or principles for courts to follow, freedom before conviction remains a constitutional dream for the Indian republic.

The provisions of the UAPA are so vague and overbroad that everyone and her grandmother could be brought within its purview. Designation of individuals as terrorists coupled with an overly broad definition of terrorism means that the UAPA could easily be used, and is in fact being used, as a tool to muzzle dissent. That most UAPA cases are frivolous emerges from the fact that according to the government’s own data, only 132 people were convicted out of 5,922 people arrested under the law between 2016 and 2019.

The Bhima-Koregaon case is a textbook example of the abuse of this draconian terror law. Over the last few years, several human rights activists have been booked under the UAPA and put behind bars on baseless grounds. The unfortunate death of Fr. Stan Swamy, an 84-year-old Jesuit priest who made several failed attempts at securing bail, best signifies the deep problems associated with the implementation of the UAPA on the ground.

Three fundamental principles of criminal justice administration that ought to characterize India’s constitutional democracy are presumption of innocence, proving guilt beyond any reasonable doubt, and the right to secure bail. The UAPA turns all these principles on their head.

Importantly, the underlying problem with the application of bail jurisprudence is not restricted to the UAPA alone. Even in ordinary criminal law, courts have been inconsistent in the grant or denial of bail. In principle, the key factors that determine whether bail should be granted are whether the accused will tamper with evidence or influence witnesses, whether the accused is a flight risk, and whether the accused will not cooperate with the investigating agencies in any manner.

However, in practice, these factors are not examined by judges in an objective manner. Time and again we see judges denying bail due to the gravity of the offence, but we must understand that gravity or seriousness of offence per se is not and should not be a factor to deny bail. The graver the offence, the graver the punishment, and the graver the temptation to abscond or tamper with evidence or influence witnesses. That the accused will flee away, or influence witnesses, or tamper with evidence should not be based on the whims and fancies of the prosecution but must necessarily be grounded on facts and unimpeachable evidence, before judges can deny bail.

Why should a judge presume that the accused will tamper evidence when the investigating agencies are in custody of the evidence, which is mostly the case? Why should a judge presume that the accused will influence witnesses or abscond when there is not even an iota of evidence to remotely suggest such conduct on part of the accused? Why should bail be refused if an accused has fully cooperated with the investigating agencies?

Currently, judicial practice is such that the prosecution gets away with unexplained facts and circumstances and judicial discretion almost always works against the accused and in favor of the prosecution. Denial of bail is taken to mean that the charges levelled by the prosecution are true. Needless to say, denial of bail is no proof of guilt and unless and until an offence is proved beyond reasonable doubt, the offence can only be said to have been alleged and not proved.

Our constitutional courts must remind themselves that bail is not a gift that courts can hand out to the select few. When the Supreme Court granted bail to journalist Arnab Goswami, Justice Chandrachud speaking for the court said that “deprivation of liberty even for a single day is one day too many.” But we did not see the same judicial eloquence when it came to the bail petition of Fr. Stan Swamy, who dedicated his whole life for the rights of tribal and Adivasi communities. Varavara Rao got medical bail, but Stan Swamy and others did not. Journalist Arnab Goswami got bail, but journalist Siddiqui Kappan did not. This strikes at equality and reeks of arbitrariness.

The right to bail is inseparably linked to the fundamental right to personal liberty guaranteed under Article 21 of the Indian Constitution. Matters of bail, therefore, are of constitutional concern. Denial of bail means that an accused will be behind bars for a significant duration of his life for a crime which is yet to be proved beyond reasonable doubt. Bail means effective access to legal representation during trial and preparation of defense. Denying freedom before conviction not only infringes upon personal liberty but a range of other fundamental rights that our Constitution holds dear.

At times, the slow pace of the criminal justice administration means that the accused is behind bars for a better part of his life without trial. There have been many instances in the recent past where other key principles of criminal justice have been given a go bye. The right to remain silent, the right to legal representation, the right to health, and the right to dignity have also lost their intended meanings. The Taloja jail, where Fr. Stan Swamy was imprisoned, does not have facilities as basic and drinking water. Fr. Stan Swamy, who suffered from Parkinson’s disease, was reportedly denied water-sippers in prison. We must remind ourselves of Justice Krishna Iyer’s words of wisdom that fundamental rights do not end at prison gates. There cannot be a greater threat to our constitutional democracy than this.

Over the last few years, we have seen many arrests. We have seen arrests of comedians on grounds of hurting religious sentiments. We have seen arrests of students on grounds of terrorism. We have seen arrests of activists on grounds of sedition. In refusing bail on inexplicable grounds, our constitutional courts have been complicit in the Indian state’s deliberate attempt to make the criminal justice process a punishment to those who speak truth to power. Nothing could be more unfortunate for our constitutional democracy than this.

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Views expressed above are the author’s own.



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