Why do people live in such fear of the government in India? Why do we fear what vengeful—or corrupt—authorities can do to us?
And more to the point: Why does this fear exist even when we know that we have done nothing wrong? When we know that there is not a shred of evidence against us?
The short answer is that we recognise that in India the process is the punishment. The judicial system is so clogged up that it will take years to come to trial. At that eventual stage, we know, the prosecution’s case will be thrown out for lack of evidence. But by then our lives will have been ruined. Hours will have been spent dealing with policemen and other authorities. Lakhs will have been spent on lawyers. Our reputations will have suffered. Many of us will have lost our jobs or large portions of our incomes.
The system is so powerfully tilted against the citizen and so favourable to the malign or corrupt police or revenue officials that innocent people really don’t stand a chance.
A key component of the repressive power of the state is its ability to put people in jail long before they have been convicted by any court of law; if indeed they are ever found guilty or if the case even gets to the courts.
This was not the situation the framers of our Constitution intended. The presumption of innocence was implicit in nearly every law they devised and having faced colonial persecution, the last thing they wanted was to replace a repressive imperial state with a homegrown autocratic government.
And yet, in some ways, that is exactly what we have become.
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Jail is the rule?
Apart from the people who do the actual raiding/arresting there are two sets of people who have reduced us to this state.
The first are the politicians who cheerfully pass laws that abridge the principle of the presumption of innocence so severely that it is almost meaningless.
Of course, politicians from the current ruling establishment are to blame. But even the Congress and other parties were only too willing to toss the presumption of innocence aside when they were in power. The reasons then offered sounded suitably high minded. The repressive laws were meant to safeguard national security. India had to act against money launderers. And so on.
In retrospect, many of us should have protested more strongly when these laws were mooted. A well-meaning politician is like a benign dictator. No dictator stays benign for long. And all politicians put their own interests ahead of the nation’s. So it should have been clear from the start that these laws would be misused.
But one reason why we were less worried than we should have been was because we had faith in the judiciary. Judges would act to protect our freedoms, we believed, and would put citizens first.
That notion now seems so quaint as to be laughable; the sort of fable favoured by children who read fairy tales.
All too often the judiciary lets down the average citizen and sides with the persecutors. If you are charged with a crime for which there is not a single scrap of evidence the judge will still send you to jail. If the prosecution’s case is an absurd concoction, the judge will take it seriously anyway and still lock you up.
Judges are not supposed to do this, in theory anyway. They are supposed to give you bail till the case comes to court. There are circumstances that could lead to the denial of bail: The fear that you could commit another crime unless you were incarcerated; fear of flight; the danger that you might tamper with evidence or intimidate witnesses, etc. But unless it can be proven that these circumstances exist, bail is part of your right to liberty.
A few days ago at the Jaipur Literary Festival, I asked the former Chief Justice DY Chandrachud why things had reached such a sorry pass. He argued, with some justification, that his Supreme Court had given bail more often than was recognised. He gave the examples of cases involving Pawan Khera and Teesta Setalvad where the Supreme Court had intervened.
But, I asked him, what about Umar Khalid?
Isn’t there something wrong with a situation where a man has been in jail for five years with no trial in sight? Where the Supreme Court denies him bail and suggests that the poor man should remain imprisoned for another year before even considering bail again?
Chandrachud said that he was reluctant to criticise the judgments of a Court that he had led till two years ago but made it clear that he disagreed with the decision to deny bail to Umar Khalid. (The whole conversation was reported by ThePrint)
His statement made headlines all over India because he left us in no doubt that he would have given Khalid bail if the matter had come before him. (It also led to a controversy over why, in that case, during his tenure as CJI, he had first assigned the matter to a judge who would almost certainly have denied bail had the case been fully heard by the SC.)
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A corrupt judiciary
But consider the facts: A man has been locked up for five years without any trial. I lack the judicial acumen of the judges who have let Khalid remain in jail but I have to say, with great respect, that the evidence against Khalid is not just far from convincing but is also utterly pathetic.
It is entirely possible that I am wrong, but in that case why hasn’t the trial begun? Show us the evidence. Give him a chance to defend himself. As Chandrachud pointed out such delays not only violate the right to freedom but also the right to a speedy trial.
Not only do they hamper the rule of law, they shame the Constitutional guarantees given to citizens and harm the Supreme Court’s reputation for fairness. Though, of course, they benefit the government.
But let’s not restrict ourselves to the top court. What about the lower judiciary, which will obligingly lock up anyone the government and the authorities bring before it?
Chandrachud accepted that the lower judiciary was often too unwilling to grant bail. But he argued in its defence—judges and magistrates were concerned that it might be said that they had been bribed to grant bail so they preferred to let the decision go up to a higher court. This may be a reasonable explanation but it does not explain why, in that case, similar considerations of embarrassment did not prevent obviously corrupt judgments from being delivered.
Though, to be fair, Chandrachud conceded that corruption in the judiciary was a serious problem.
Judging by the interest that the Umar Khalid case has generated and the level of public outrage, the people of India are now saying that enough is enough. Innocent citizens fear the government in a way that no citizens in a democracy ever should. Faith in the police and the revenue agencies is at worrying low; levels not seen since the Emergency.
Politicians may be happy to live with a terrified citizenry. But what about the judiciary? It has long been regarded by Indian citizens as our last functioning link to the spirit of the Constitution.
Are our judges not concerned that when history is written, it will record that when justice and liberty were in danger they looked away?
Vir Sanghvi is a print and television journalist and talk show host. He tweets @virsanghvi. Views are personal.
(Edited by Theres Sudeep)