Liberty- bail and jail in Vendetta times

By Cleofato A Coutinho
24 June 2021 22:18 IST

They spent over a year in jail. They survived two covid-19 waves in custody of National Intelligence Agency. They were good at academics. They lost at least one academic year, if not two. Two of them were pursuing M.Phil, Ph.D   from JNU and one of them B.A.  In Persian studies at Jamia Milia University. One of them lost her father to Covid -19, when she was in jail. (Mahavir Narwal was a senior scientist at the Haryana Agricultural University). They all wanted a more just society. They could be called dissenters. The #PinjraTod (break the cage) movement came into being in 2015 to ensure an affordable and non-discriminatory accommodation for women in Delhi.

#PinjraTod activists Devangana Kalita and Natasha Narwhal and Jamia Student Asif Iqbal Tanha were in custody   since 23rd May 2020 under Unlawful Activities Prevention Act in the wake of Delhi riots of anti CAA-NRC movement. After over a year in custody, the Delhi High Court found no prima facie case of terrorism against them when it said “at worst, evidence that the appellant participated in organising protests…. what to talk of committing a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA”. The court was loud and clear when it said “In its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred. If this mind set gains traction, it would be a sad day for democracy”.

There is celebration is liberal circles over the release and vindication of their stand. But why did they have to spend over a year in jail if there is not even a prima facie case. Even after the release order,  they  remained in custody for over 48 hours when the mandate is immediate release, despite Brinda Karat, two JNU professors and two well-known activists and Delhi residents standing surety only highlights the vendetta against activists and use of criminal law  and arrest provision to intimidate them into submission.

Personal Liberty is one of the most cherished rights of citizens. A citizen’s right to dissent and protest directly flows from fundamental right of free speech. That is the central pillar of the constitutional democracy. It is this pillar that is being destroyed by targeting activists and opposition leaders without any formal emergency in place. Activists can be brought under ambit of UAPA or sedition laws. Political opponents can be brought under the radar of enforcement directorate. In case nothing is available Tax authorities shall come to the aid of the vindictive governments.

The bail jurisprudence has been developed over a long period. As early as 1977 the unfair bail system was reflagged by Justice Krishna Iyer. Time and again the highest court has directed the police shall not unnecessarily arrest and magistrates shall not authorise detentions casually. After over four decades, the issue haunts the country. The highest court failed to send a clear signal. P. Chidambaram was a victim of vendetta politics. Digambar Kamt was lucky to escape custody. They may be   accused in alleged scams, but our country has presumption of Innocence as foundation of our criminal jurisprudence. Jail before conviction is a significant erosion of the right to liberty.

What has now come to be called as ‘custodial interrogation’ permitted by the courts in the teeth of principle of no self-incrimination creates a fertile ground for the political vendetta by detention.. Bail and Jail always require a balance approach between liberty of a citizen and collective interests of the society. Societal interests cannot be fulfilled by principle of revenge. The state has failed in providing quick trials. Jail before conviction cannot be a substitute.

In the case of Munnavar Faruqui the stand-up comedian remained inside for a few weeks despite the police having no video footage but the police had oral evidence what he was “going to say”. But the trial court refused bail and the high court found he had violated his ‘duties and obligations towards his fellow citizens’. The apex court may have trashed the High Court order case but Faruqui spent a few weeks in jail. The Supreme Court junked the #ToolKit case against Disha Ravi and others but they   also spent a few days in jail. Only the fortunate one is the Noise hour hero in whose case the highest court thundered “deprivation of liberty even for a single day is one day too many …” .The highest court said the doors of that court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the state is being weaponised for using force of law. The only problem is how many can afford or are   fortunate to reach their doors in Delhi directly and in case they happen to reach, do they get the same audience?  Siddique Kappan, arrested in October 2020 is still testing his luck before the court at Mathura. Unlike the noise hour hero, luck did not dawn on him   in Delhi. Mercifully and of course thankfully, the highest court directed him to be shifted to hospital from a Mathura court! That is the story of activists throughout the last over six years

 In the second wave of the corona pandemic, the Courts seem to have caught the imagination of the people. Will all the failings of the courts to stand up against the robust government, teeming millions cheered them as they ‘almost’ took over the covid-19 management. The high point being the powerful government caving in on the vaccine policy. The public faith and trust earned by the higher judiciary must be taken to another level. Time for restoration of credibility of the courts is here and now. On sedition, the country got a clear signal. The civil society expects the same alacrity from all courts when governments use criminal law as a vendetta weapon..

It is time to seize the moment. The high Courts and   Trial courts must not act as mere post offices of the establishment. Well   settled and robust restatement of law in the #PinjraTod   activists case and other directions from the highest court must halt brazen persecution of activists and political opponents. The discharge from wrongful prosecution is the only way in saving the liberty from becoming a casualty. It appears even Mukul Roy smelt fresh air of a new era for liberty! Hope that atmosphere continues.

Disclaimer: Views expressed above are the author's own.

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

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