Thursday, March 23, 2023
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Habeas Porcus — how our judiciary is murdering the principle of ‘bail, not jail’ routinely

Judiciary is responsible for ensuring our liberty, and habeas corpus is the usual route. But magistrates are acting as if the rule is ‘jail, and bail is above my pay grade’.

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The headline of this week’s National Interest isn’t a typing mistake. Neither is it a reference to any meat someone may detest or relish. If it sounds like a rude cheap shot, it is because it’s intended to be so. It is inspired by a real-life parallel, to make an important point at a time when in our judicial system, the original dictum — bail is the rule, jail an exception — has been reversed.

Ask any crime reporter worth her knowledge of the IPC, what do police officers say in private about the tactic tried, tested and perfected over decades to curb crime in their districts or states.

It is called “burking” crime, because curbing crime through old-fashioned policing, investigation, prosecution is onerous and uncertain in its outcome. It is wisest to register as little as possible. It is the safest and surest way to curb crime. Your slate then looks brilliant and annual confidential reports with ‘outstanding’ written all over them follow.

Similarly, if the prime responsibility of our judiciary is to ensure our liberty, habeas corpus is the usual instrument a citizen arrested unfairly trusts to secure redressal in the courts. And if the default order is to deny it, it corrupts the idea as much as the police ‘improving’ its crime counts by not counting.

It is a challenge to decide which institution has declined over the recent decades, the police or the judiciary. But today, if you are someone the powers that be don’t like, they can easily find police officers to file a case with serious sections from the IPC, never mind if they don’t have a shred (or iota, which our judges prefer in their orders) of evidence.

You might still think, certainly, they still have to produce me before a magistrate who would easily see through the police case that’s thinner on evidence than Coronil, if even that. And once the magistrate sees that, the order will be determined by that immortal line from the legendary late Justice V.R. Krishna Iyer: Rule is bail, not jail.

Contrary to our belief, that Krishna Iyer line wasn’t immortal. If anything, it’s been murdered and cremated routinely, and at least three times in recent days. Check the cases of Munawar Faruqui, Nodeep Kaur and Disha Ravi. Our choice of three very young and vocal people is a conscious one.

Also read: Munawar Faruqui no hardened criminal. Denying him bail is to keep Muslims in line

One was facing a charge of offensive jokes he was apparently “inevitably” going to crack. So, locked up for intending to commit a crime, or for what legalese would call mens rea (motive) without a crime actually committed. In the second, Nodeep had a charge of attempt to murder, the formidable Section 307 IPC against her. And in the third, it was worse, sedition.

In each case, the first magistrate, where a citizen needs justice and protection of her liberty most of all, acted as if on the principle that the rule is jail, and bail is above my pay grade.

Nodeep Kaur was given bail by the Punjab and Haryana High Court essentially because it found no real evidence to justify IPC 307 yet. The courts she went to earlier, at two levels in the district, didn’t see through that. She spent 45 days in jail undeservingly. Of course, no one would call those judges to account, not even the high court.

Faruqui was denied bail in three attempts. Even the Madhya Pradesh High Court read him a sermon and sent him back to jail. The Supreme Court mercifully let Faruqui go. But he’d already spent 36 days in jail. And even a day in jail, or your liberty denied any which way, affects you deeply. Read what he told our reporter Bismee Taskin.

Others arrested with him, Prakhar Vyas and Edwin Anthony, were given a kind of knock-on interim bail for the sake of parity with Faruqui. But two others, Nalin Yadav and Sadaqat Khan, were denied multiple times — Nalin’s 3rd bail application was denied, along with Faruqui’s by the high court, while Sadaqat’s second bail application was denied by the trial court, which said since Faruqui only got interim bail, Sadaqat cannot be given benefit of parity for regular bail. Mercifully, both of them finally got interim bail from the high court Friday.

Disha Ravi was arrested by the Delhi Police in Bengaluru on a Saturday. She was flown straight to Delhi and produced before a magistrate who sent her to five days’ police custody first — and two more later — overlooking the “sketchy and scant” evidence for the sedition charge that his additional sessions judge found later. We celebrate the inspirational lines that judge Dharmender Rana wrote in his bail order, and we must. But the cruel fact is, a citizen was denied liberty for 10 days. Seven in a police dungeon, three in Tihar.

Forget what you think of her politics. She is a citizen entitled to the same protections of law and the Constitution as you and I. Delhi Police say they followed the lawful process fully in her arrest and they are right. They took the help of the local police, and produced her before a magistrate within 24 hours, which is the law.

Now see it from Disha Ravi’s situation. She is whisked away on a plane, without a lawyer, produced in a court where she cannot reach a lawyer of choice, and then in the lock-up. As if she were some Dawood Ibrahim. Now think. What if this magistrate made the same decision as Judge Rana did 10 days later and gave her bail? How soon could a young person from a distant city produce somebody to stand bail for her? Who would have ensured she reached Bengaluru the same day? Nobody will raise this with either the Delhi Police or the magistrate.

Also read: Please save the judiciary from the judges as well, your lordships

In the same week that we celebrated the belated bail orders for these three, came the sobering word from the Allahabad High Court. Aparna Purohit, the India content chief of Amazon Prime Video, heads the crew that produced the Saif Ali Khan-starrer OTT series Tandav, now facing multiple FIRs for alleged insults to Hindu Gods.

Denying her anticipatory bail, the judge at the High Court made the chilling observation that “actions of the applicant being against fundamental rights of majority of citizens, her fundamental right of life and liberty cannot be protected by grant of anticipatory bail”. Hold your breath and fill your bail bonds.

And we were taught all this while that in a democratic, constitutional republic like ours, the first principle is that each individual’s rights matter foremost. That claims or rights of any collective cannot extinguish my rights as a citizen. In democracy, you get powers with numbers. If justice is also number-driven, we are a mob. We can pick and lynch.

It is possible that Aparna Purohit will also get bail in the Supreme Court. Which will both be justice and a travesty of it. Because, in 2014, in what is called the Arnesh Kumar case, the Supreme Court had set a stiff test for making arrests in cases where punishment was less than seven years.

Arnesh Kumar was charged under IPC section 498-A (dowry harassment etc.) and feared arrest. Denied anticipatory bail, he reached the Supreme Court. Which gave him relief and laid down that to arrest a person on a charge attracting less than seven years in jail, a police officer has to be satisfied that it is necessary to prevent another crime, destruction of evidence or threat to witnesses.

Further, a check-list for arrest is to be duly filled, with reasons clearly stated and produced before the magistrate, but at least in Munawar’s case, among the ones I mentioned earlier, this was allegedly observed in cavalier breach.

Travesty it will be because not everyone, in fact not most people so denied, will have the wherewithal to reach the highest court. Even if they do, they would have spent weeks in jail already. And indeed, even if the court insists on the seven-year-sentence test it set in the Arnesh Kumar case, the police-political nexus couldn’t care less. Sedition, with life sentence, is their favourite weapon against those they want in jail, if only for a few weeks.

Also read: Suspect all, fix all? Is that the motto of our new ‘National Suspicion State’?


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  1. SG writes “We celebrate the inspirational lines that judge Dharmender Rana wrote in his bail order, and we must.”

    How come such inspirational lines did not find its place in the order when the same judge denied bail to a pregnant Musim woman accused in the Delhi riots.

    One suspects with the entire world media watching this time round….time for some poetry!

    • @Jailor: How & why did the Muslim women fuk during the “protest” against a law which was made to save Hindu, Christian & Sikh refugees persecuted by Islam & Muslims??

  2. All said is good. In India do you think the journalists are also doing their job properly? I don’t think so. They are as corrupt, biased as the politicians and other folks mentioned in this article. Anyone can criticize or write an article. Its not that difficult.
    Journalism is supposed to be the fourth pillar in a vibrant democracy. But then the journalists are also pandering their whims and fancies.

    My point is all of us especially in India should focus on doing our jobs responsibly without corruption, bias etc. Then eveething will improve on its own.

  3. The root cause is Old Fashioned Policing. Will the police reforms ever happen in this country? If there was so much resistance to GST, there is so much resistance to agricultural reforms — hell will break loose when police reforms are attempted.

    It will require another Iron man like Sardar Patel to be born.

  4. If a nationalist like Arnab is put in jail for several days for no reason and your ilk celebrated it, the anti-nationals you cite can rot in jail for a lifetime. Anything that the lefty ecosystem says in this matter is a bad joke. Shekhar Gupta can put his thoughts where the sun does not shine.

  5. The article leaves us to wonder where is our constitutional values of freedom and fundamental rights..courts are becoming bystanders to this brazen attempts by the powers that be to ride roughshod over citizens who voice their protest albeit peacefully.

    • Ha!! Ha!! We saw peaceful riots by Jihadis in Delhi, Bangalore & their mirror copies in Sweden, Norway too!! We also saw the peaceful riots on 26th. Jan!! Democracy doesn’t mean riots!!

      Meanwhile, the Indian courts are a joke; they even dared to stay farm laws passed by the parliament!! The courts & commies/Jihadis need lessons on democracy & constitution, they will never forget!!

  6. Views made in the article hits the issue on its head..individual’s liberty and constitutional rights are trampled with impunity and the courts barring a few look the other way…sad state of affairs

  7. Chiddu going to jail for a long time was the highpoint of Indian judiciary.

    And Shekhar Gupta trying to chaperone the four SC judges during their unprecedented press meeting in 2018 was the biggest non event. Guptaji had then proclaimed that the next 48 hours would be very crucial for the Republic (Indian republic, not Republic TV). The sun continued to revolve and night was followed by day.

    So much for Shekhar Gupta’s perspicacity (that means: the quality of having a ready insight into things).

  8. May be you have never seen the constitution or understood it. Whatever remarks the Hon’ble High court has given in Aparna Purohit anticipatory bail case is 100% right .If a citizen is hurting other citizens physically or emotionally then his fundamental rights ceases and the act of him is counted as a cognizable offence. Hurting religious sentiments of people or giving hate speeches are also an act of violating fundamental rights of others. There are many judgements of the Constitutional courts in which they have said that violating other citizens fundamental rights is an offence. In Dec 2020 Hon’ble SC observed that not wearing a mask in public is also a violation of fundamental rights of other citizens. If hurting religious sentiments of public is not a crime by your logic then Ragging in colleges is also not a crime based on the same logic.

    • If hurting sentiments is such a big crime then why is the entire BJP government not in Jail?

      • @Stephen Billings: The Vatican protected pedophile pastors for decades!! BJP is NOT doing anything of the sort!!

      • Already many cases going on every party politicians for hate speeches.There is legal way for every case.You can’t put every politician directly in jails without proper trials.All the party politicians give hate speeches just to make their vote banks happy.Even Pappu’s party or people like Owaisi are no exceptions.May be you have not seen the cases in india where some pieceful people declare bounty on other peoples heads without having any morals and respect for law of the land when their religious sentiments are hurt.Legal actions are peacefull and civilized way than declaring bounty on peoples head like terrorists or Maoists.

  9. I don’t understand why humans should be worried about the reputation of “gods” when these “gods” themselves don’t seem to be worried about what humans talk behind their backs! If humans are guardians of “gods”, then humans should be worshipped. If the “gods” are indeed “divine” let them fight for their own honor. Aren’t “gods” supposed to have almighty power? The greatest dishonor to “gods” is a devotee’s attempt to seek the help of human laws to protect his “gods.”

    • No one should be allowed to attack Gods of other’s religion. Most people who attack Gods of other’s religion have some sinister aims such as create a religious divide among people. Unless you become the victim for making a picture of Mohammad or abuse him, you won’t understand why people have become sensitive to abusing Gods. If all Gods of all religions can be abused freely, nobody would bother of abusing Gods. It’s the selecting abusing of one religion’s gods at will but be deadly scared of abusing the Gods of another religion.

      • Absolutely!! Only Hindus; their gods, their history & civilization, can be abused by the commies & Jihadi/Abrahmics!!

      • Man created God. Man created religion.
        This my God vs your God is nothing but fighting based on concept which is not real and is just wasting away precious human potential on this planet. Try to see the false as false and the truth will ultimately be known.

        • @Kaveri: Hindus have used gods as tools for personal development!! Start giving your wise lessons to fundamentalist Abrahmic religions like Christianity or Islam which say My God is the only god”!! Islam even wants non Muslims to be killed and they have done so successfully with Hindus since eons & still do!!

          In the Quran al-Khidr, a righteous servant of Allah, kills a child. Muslims justify this by saying that if the child wasn’t killed, he would have grown up and left Islam!! With that kind of evil mentality & teachings, don’t expect them to reform unless forced!!

    • Well said. These so called gods are made up by men long ago. If they were around would they not help human beings? How many wars have been fought and how many diseases have killed millions. Where are those gods? Human beings should help other human beings and stop worrying about these so called gods that do not exist!

      • @Stephen Billings: WHY don’t you give those great lessons on god to the Christian Vatican protecting pedophile pastors or Jihadis who are killing Christians, Hindu/Dalits & Sikhs in Islamic nations like Pakistan/Bangladesh??

        WHY does Biden, American president who swears on the Bible say that killing Muslims in China is a cultural issue of the Chinese??

  10. Sir, then it’s high time before people look inside the system and think how such problems are arising. Who and how are they getting selected. Do all know about the process.?Start with the apex as then it trickles down to the rest!!

  11. Some very fine Judges, at the base of the pyramid, are rendering searingly honest, elegantly worded verdicts. Which would do credit even to those far above their pay grade. Consider the CA Act. A law graduate, fresh out of college, could rule on its constitutionality. Conversely, India’s most celebrated lawyers can appear on TV and make the most unconvincing arguments, filled with sophistry. A Judge must be upright, fearless, independent. Every Disha Ravi’s bail application should come up before the right sort. 2. Some years ago, around the spectrum wars peak, I was getting a hair cut at the Taj Man Singh. A plummy lawyer was getting a pedicure and speaking to a foreign client on his cellphone. In India, he said, each day in Court is different. You take your chances. A lot depends on the Judge.

  12. Mr Shekar Gupta should understand that there is difference between Habeus corpus writ and bail granted under CRPC. Former applies when a person is illegally detained or arrested by the police or persons in authority. Bail is the power to release an arrested person.

    It is difficult for Shekar Gupta to shed liberal bias, even though now he is supposed to be practising unhyphenated journalism. Of three people he has named, one is anti-Hindu mocker, the other two colluded with foreigners to chalk out the course of the agitation they wanted to support. It is different from participating in or supporting a homegrown protest. Why do the Liberals always support a anti-Hindu conduct, or anti-India schemes in the name of liberty?

    • Disha Ravi is charged under sedition for colluding with Khalistanis !! That is she supports break up of some geography from india!!
      We may not be privy to what police presented to magistrate to press this charge. But how ludicrous it sounds – A girl from far off karnataka who is not even a sikh is fighting for separate sikh state to which she does not anyway belong !!
      SG is right in his saying that police and the magistrate are let off the hook without any accountability. Human rights commission may need some teeth to arrest(stop) such happenings.

    • Where is the proof that somebody is an anti-Hindu mocker? just the word of the son of a local MLA of the ruling party??
      Somebody colluded with foreigners to support an agitation? Even if they did, how did t become a crime? Our own PM demeaned the country by going to USA and tried in vain to interfere in the election there trying to drum up support for Trump-By your own token, that Is a bigger crime then? Should he be standing trial for it? Indian diaspora is 18 million strong and many of them engage in the local communities in various ways including in political action-should they all be sent to prison because they are foreigners?
      “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”― Martin Luther King Jr.

      • Jayram’s like want to decide what is wrong and what is right at their will. Your type change their stance based on whether someone is a liberandu or a nationalist.

        • And the the types of, “maha bhakt” get immediately rattled the moment someone asks uncomfortable questions to which their bhakt-brain doesn’t have any answers.

      • @Jayaram: Where is the proof that somebody is an anti-Hindu mocker? Read Quran you ignorant!!

    • @Gururaj B N: These so called liberals are paid by break India,Anti Hindu forces!! These commies with their allies need to be eliminated as the American Christians did during the cold war!!

  13. We may have dealt with china and pakistan with determination and strength.

    However the real enemy are ultra left wing radicals and jihadist and journalists who support freedom of RIOTERS AND PROSELYTIZERS .

    We must break the nexus of RIOTERS and PROSELYTIZERS and fake history propaganda by undereducated jhollawallas and rent a journalist. They want mayhem and bloodshed in INDIA as was evident by recent events.

    • Dissent in a democracy doesn’t mean burning the country or going against national interest!! ONLY the brainless & rather fascist leftists/communists in India can claim that free speech & dissent of hate against Hindus & India is democracy!! Even in USA, they don’t go to that extent of stupidity!!

      Yet!! The liberal/democrat leader of the so so called free world, USA talks of Muslim rights everywhere while swearing on the bible!! WHY doesn’t he talk of Hindu rights in Kashmir/India?? WHY doesn’t he or Islamic heaven Pakistan not call out China on real genocide of Muslims there?? Biden even lets China off the hook saying it’s difference of culture!!

      Meanwhile, when there are Muslim riots, all these leftists fascists blame Hindus, not Muslim who are always creating trouble everywhere in the democratic world!! These hypocrites & liars remain silent on Hindu genocide in Kashmir & lynching of more than 200 dalits/Hindus every year!!

  14. If Rule is bail, not jail then, why do we not have a hearing for jail before putting a person in jail in stead of arresting him first and then go for hearing for bail ?
    So long as that does not change the cases mentioned above but conveniently forgotten many on the other side of the ideology will continue to happen.
    Whatever we inherited from the British rulers was selectively continued and used to suit the convenience of the rulers to remain in power.
    The reality of life is nobody wants an assistance who cannot be manipulated, so the desired perfection has to come from the rulers.

  15. Disclaimer: I may be annoying a lot of people. But the truth be told.
    Most Indians feel it necessary to wear a helmet only when the traffic police is around, little realizing that the helmet protects the head housing a brain which is the nerve centre for living normally. This being the psyche, I have to conclude that most Indians lack self-discipline.
    Discussions in the media is how a rule hurts and not how a rule helps. The discussions, including among professionals who are “experts” in tax matters, are how to circumvent paying taxes rather than pay them. The media talks of right to protest and not about the reason or that the protests themselves end up violating the basic rights of the people at large. The discussions in the media mostly absolves all citizens of their transgressions and responsibilities. The role of each individual in a democracy does not end with casting a vote. He too is required to perform his duties and uphold the law diligently.
    There is no discussion as to how a limited, ill equipped police force and an inadequate judicial system (it costs a lot of tax payers money to have a police force in a ratio of at least 1 -100; it costs money to appoint 10 times more the number of judges as required for the population, again to be paid from taxes; it costs money to enhance the infrastructure for efficient implementation of security and related matters) will handle deliberate violations of law and rules by all and sundry.
    But if the citizens wear their helmets even when the traffic police is not around, it will help matters a lot. Also, an objective approach by the media too will help.
    Warning: Handling the economic divide has nothing to do with what I have written. It is a different subject altogether.
    A request: Make your points if you must. Don’t attack me personally. I am what I am.

    • SG is only pointing out that the executive and judiciary being influenced by the politician. If they are performing their duty as per set rules, would sketchy and scanty evidence be used for arresting anyone.
      Ill equipped or under staffed police/judiciary can be an excuse for not arresting anyone. But how can that be applied for arresting without any evidence.
      If tomorrow police starts catching helmetless riders and would let go based on political inclinations of the person under the garb “we dont have staff…” would that be a desirable situation

      • Thanks Prashanth for your view. I respect your views.
        Scanty evidence mat be only a persception..
        For example…
        An extract from the judgement in Disha Ravi’s (DR) case as published in sections of media…

        “…It is not mere engagement with persons of dubious credentials which is indictable rather it is the purpose of engagement which is relevant for the purpose of deciding culpability…”

        When there is a suspicion, as in this case where DR contacted persons of dubious credentials ( as established by the state) and tried to conceal her identity, there is always a case for investigation as to the purpose. We can’t say that such matters should not be investigated. In this case democratic ways as laid down was followed in the investigation.

        There were thousands of people supporting the protests in the social media and mainstream media. All of them were NOT arrested. This phenomenon of supporting obscure activists in not new. I have personally watched the “Media play” in support of so called activists for more than half a century – created for the shock and awe effect. Believe me. “Scanty evidence” etc is just media hype

        Disclaimer: I am in no way implying that anyone is guilty. That is NOT for me (or the media) to decide. “We the people” need to recognize that.


        • @Avatar Col KL Viswanahan (Retd): Well said!! “Scanty evidence” etc is just media hype

          Also, media is mostly communist/Jihadi!! In America, they would have been killed or put in jail as during the cold war!!

      • @Prashanth: Only the ignorant & the commies/Jihadis think that Disha Ravi was innocent!! She knew what she was doing!! These type of Evangelical anti nationals & Commie/Jihadis need jail for a long time!!

  16. In all of this telling, notice how it is those people whose ideas are not in line with what the Govt propagates who suffer this fate. Contrast it with Arnab Goswami, Kangana Ranawat, etc. who procured bail in seconds and Amit Shah and his son who did not even have cases registered against them! It is more evidence that Modi Sarkar is full of hot air. They are concerned only about winning elections and helping their mates amass fabulous wealth. Rest of the Indians and their well-being matters little to them. But we Indians are to blame. Even after 13 yrs in Gujarat and 7 yrs in Delhi our eyes haven’t opened.

    • Ha!! Ha!! In India, nationalists are put in Jail while commies & Jihadis which don’t care for democracy or constitution talk of both while practicing anti Hindu apartheid!! Temples are under govt. control while hate preaching mosques are free!!

      ..80% of Indian media & bureaucracy/courts is infested by communists/Jihadis!! Bharat should get rid of them as the Americans did!! A pure right wing nationalist Hindu opposition party should also emerge!!

    • Ha!! Ha!! Arbab was put in jail without bail!! His crime?? Speak against commie anti nationals of NCP/congress & Jihadi sena!! Kangana’s office was broken by those fascists too!! WHERE was justice??!!

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