Mohd Zubair got bail, but the guiding principle of India’s justice system is still in jail

Nupur Sharma and Mohammed Zubair are on opposite sides of the political divide, but the Supreme Court's relief to them reaffirms that 'bail, not jail' is the rule.

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A day after the Supreme Court gave former BJP spokesperson Nupur Sharma interim protection from arrest on Tuesday, Alt News cofounder Mohammed Zubair also walked out of Delhi’s Tihar jail Wednesday.

Zubair’s release after spending more than three weeks behind bars for allegedly hurting religious sentiments through his tweets came after the lower judiciary denied him bail on three occasions. This shows a disturbing trend of two contrary judicial approaches being followed.

The Supreme Court clubbed the six FIRs against Zubair before granting him bail. It reminded the UP government that “the existence of the power to arrest must be distinguished from the exercise of the power of arrest”, and that the latter “must be pursued sparingly”.

This order may have a bearing on a similar plea to club cases against Nupur Sharma, whom the court granted protection from arrest in FIRs over her remarks against Prophet Muhammad during a television debate.

While Sharma and Zubair lie on opposite sides of the political divide, the Supreme Court’s relief to them reaffirms the principle that bail, not jail, is the rule. And that’s why ‘bail not jail’ is ThePrint’s Newsmaker of the Week.

The Arnesh Kumar protection

Along with classics like Anand, Sholay and Amar Akbar Anthony, the seventies also gave Indians the landmark legal principle — “basic rule is bail, not jail”. The motto was immortalised by Justice V.R. Krishna Iyer in a September 1977 judgment.

Since then, the Supreme Court has emphasised this principle several times over, and has warned against misuse of the power to arrest. In one such landmark judgment in 2014 — known as the Arnesh Kumar case — the court recognised that an “arrest brings humiliation, curtails freedom and cast scars forever (sic)”. It then issued guidelines with the intention that “police officers do not arrest unnecessarily and magistrates do not authorise detention casually and mechanically”. The judgment required the police to record reasons for arrest and to issue a notice of appearance in cases involving offences with a jail term of less than seven year.

Both Zubair and Sharma have been charged with provisions including Sections 295A (deliberate and malicious act intended to outrage religious feelings) and 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.). For such cases, the Supreme Court’s Arnesh Kumar judgment stands as a protection from unnecessary arrest.

Earlier this year, the Arnesh Kumar judgment had come to the rescue of stand-up comic Munawar Faruqui as well. Arrested in Indore for allegedly insulting religious sentiments, Faruqui was granted bail in February after the Supreme Court accepted that its guidelines for arrest and bail were not followed.

Not everybody can be Zubair

Senior Congress leader P. Chidambaram called the Supreme Court’s orders on Zubair “triumph of liberty over tyranny”, and said that the court “should release all other Zubairs too”. The bail led to a call for the Supreme Court to “end arbitrary arrests over flimsy FIRs”, while others pointed out how the real challenge was the “overreach of the State”.

In fact, there are plenty of recent examples that show how the Supreme Court’s guidelines related to arrest weren’t followed.

Zubair’s lawyer said the Delhi Police issued a notice to him around 5:30 pm on 27 June and arrested him around 6:45pm the same day. And then came the three failed attempts to secure bail for Zubair. His first bail application was rejected by a Delhi court on 2 July. On 15 July, a sessions judge granted him bail in the Delhi case but he remained in jail because of the other FIRs filed against him in UP, where a court in Sitapur rejected his bail application on 7 July and then a Lakhimpur Kheri court rejected it on 16 July.

Caught in a tangle, he approached the Supreme Court, which acknowledged the “vicious cycle” of remanding him in a new case as soon as he got bail in an old one.

In fact, Munawar Faruqui too was denied bail on three occasions — twice by the sessions court and once by the Madhya Pradesh High Court — before he got relief from the Supreme Court.

So, the real change needs to come at the magisterial level–the first line of defence against arbitrary arrest. Not everybody can be a Mohammed Zubair or Munawar Faruqui. Most don’t have the means or resources to stand before the highest court of the country and demand freedom.

The Supreme Court realises this. Earlier this month, it called for reforming the bail-related law, saying the government should consider framing a special law on bail. Noting that two-thirds of the prisoners in India are undertrials, the Supreme Court asserted that arrest is a draconian measure that needs to be used sparingly.

However, these observations would remain on paper unless magistrates implement the Supreme Court’s guidelines, which would negate the need to go to the Supreme Court in the first place.

Kaynat working against the rule

Then there are also laws like the Unlawful Activities (Prevention) Act (UAPA) and the Narcotic Drugs and Psychotropic Substances (NDPS) Act, which ensure that jail is actually the rule and bail is an exception.

The bail provision under UAPA says that a person accused of terrorism shall not be released if the court “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” This is the law that has kept Kerala journalist Siddique Kappan behind bars for more than 21 months. He was arrested on 5 October 2020 en route to cover the alleged gang rape and murder of a Dalit woman in Uttar Pradesh’s Hathras district.

This provision has also made bail difficult for those arrested for Delhi riots and Bhima Koregaon violence case. One of the accused in the latter, 84-year-old Jesuit priest Stan Swamy, died of cardiac arrest in July 2021 before the Bombay High Court could decide his bail plea. Hearing the plea posthumously, the high court remarked that the tribal rights activist was a “wonderful person” and the court has “great respect” for his work.

The bail provision under NDPS Act takes it a step further. It requires the court to have “reasonable grounds” to believe that the accused is not guilty and won’t commit another offence if out on bail. The provision kept Shah Rukh Khan’s son Aryan Khan in custody for 25 days before he was granted bail by the Bombay High Court.

What can a rule do when the entire kaynat (universe)—as Shah Rukh Khan’s character Om Makhija in Om Shanti Om would put it—is working against it? The ’70s slogan of ‘bail not jail’ needs saving. The only question is, who would do it?

Views are personal.

(Edited by Prashant)