By Lokendra Malik
Recently, Prime Minister Narendra Modi suggested to chief justices of all High Courts to set up district-level committees in their respective states, to be headed by district judges to consider bail for undertrial prisoners. He was addressing a joint conference of chief justices of High Courts and chief ministers in Delhi. Expressing his concerns about the incarceration of undertrials, Modi said: “Today, there are about 3.5 lakh prisoners in the country who are undertrials and are in jail. Most of these people are from poor or ordinary families. I would request that in every district there should be a committee, which can be headed by the district judge, so that these cases can be reviewed and wherever possible, such prisoners released on bail.” He added:
“I would appeal to all chief ministers and chief justices of High Courts to give priority to these matters on the basis of humanitarian sensibility and law.”
These observations, though delayed, need serious consideration. However, there is a need to work jointly to mitigate cases of illegal arrests and false prosecutions and grant bail to undertrials because the State plays a significant role in the administration of justice. If law-enforcement agencies of the centre and states discharge their functions professionally and honestly, the number of undertrials will decrease in jails.
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Modi may also consider asking state governments run by his political party and central government’s law-enforcement agencies not to arrest people unnecessarily or without sufficient evidence. Some Opposition ruled states are also following the same pattern. Arresting people for posting critical tweets on social media is one such misuse of police power.
A few days ago, the Maharashtra government arrested an MP and MLA for planning to chant religious prayers outside the residence of CM Uddhav Thackeray in Mumbai. Surprisingly, both were booked on charges of sedition. This is a clear misuse of political and police power by the state government.
Governments should have the patience to tolerate criticism because this is what makes democracy mature and accountable. We are living in a free country, not in an autocratic one. Government agencies have to build a professional temperament to protect free speech and critical expressions by citizens. Sadly, many critics of the government are lodged in jail for a long time without bail in different states. In some states, when courts grant bail to the accused persons, the police arrest them in different cases immediately when they come out of prison. Public intellectuals, constitutional pundits and thinkers ponder many times before writing critical pieces against the government or its wings because of the fear of criminal prosecutions and arrests. Very few newspapers and magazines publish critical pieces nowadays because of the government’s undeclared censorship and pressures. Today, illegal arrests are the norm. Bail is no more a rule, as Justice Krishna Iyer had once said, but has become an exception in this land of Bapu. Was this the vision of Mahatma Gandhi, Babasaheb Ambedkar and Jawaharlal Nehru? Every citizen has a fundamental right to express his views without fear.
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Illegal arrests and false prosecutions violate the human rights of people. Nobody wants to face arrest because it has an impact on human dignity and reputation in society. The Supreme Court has rightly observed in Siddharam Satlingappa Mhetre that great ignominy, humiliation and disgrace are attached to the person who is arrested in a case. Arrest leads to many serious consequences not only for the accused but for his kith and kin, friends and even for the community.
The Court rightly states that most people do not make any distinction between arrest at a pre-conviction stage and post-conviction stage. Thus, the police and other law-enforcement agencies should exercise their power to arrest cautiously. There are cases when accused persons get bail after ten or 15 years in jail for offences like NDPS, UAPA, etc. Who will compensate them if they are convicted of such offences even though they may be innocent?
In State of Kerala vs Raneef, (2011), the Supreme Court observed that bail applications should be decided expeditiously.
“In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course, this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail”
-the apex court observed.
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Time and again, the Supreme Court has reiterated its view that bail is the rule and jail, the exception, and courts need to decide bail applications expeditiously. But the situation is quite different on the ground level. Courts of law, particularly trial courts hesitate to release accused persons on bail and these applications remain pending for months and years despite the directions of the Supreme Court in many cases. Thus, there is a need to adopt a humane approach in the adjudication of bail applications. Courts should respect the presumption of innocence and decide bail applications keeping in view the state of trials. Putting people behind the bars, pending trial for years, does not serve any purpose.
In Dataram case, the Supreme Court said:
“…a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions case.”
Hopefully, the judiciary and law-enforcement agencies will pay heed to the prime minister’s advice. They may work together to minimise illegal arrests and detentions of people. Both the judiciary and the government are duty-bound to protect the life and personal liberty of the people as mandated under Article 21.
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The arrest of a person should always be based on a procedure which is just, fair and reasonable as ruled by the Supreme Court repeatedly. The time has come when the responsibility of government officers must be fixed for arresting people without sufficient evidence. The victims deserve fair compensation in cases of illegal arrests. A fearless society is the foundation of a great democracy.
Urdu poet Naseem Sahar said: “Diye ab Shahar mey roshan nahi hain, Hawa ki hukmarani ho gayi kya. (Lamps are no longer lit in the city, has the wind ruled?).”
—The writer is an advocate in Supreme Court