One major difference between an authoritarian state and a liberal democracy is the freedom an individual enjoys. In today’s India, that freedom is in danger. It isn’t just free speech — though, that, of course, is also a problem. It is the very right to liberty.
In our country, virtually anyone in a position of authority — a minister, a bureaucrat, a policeman, a revenue service official or even somebody who has friends in power — can have any of us arrested and sent to jail. In most circumstances, even if there is no case at all, the person concerned will spend at least a month in jail.
Why does this happen in India and not in other countries that we regard as liberal democracies? Two reasons.
One: in most modern democracies, those in power are made to follow the spirit of the law and to respect personal liberty. This is not to say that there are no abuses. But there are strong checks and balances. Officials who order arrests without good reason are usually sanctioned and in many Western democracies, you can sue the authorities for wrongful arrest.
Two: all laws only work if there is somebody in authority who respects justice. That task falls to the judiciary. When the police arrest someone without good reason or when they demand jail custody, it is up to judges to decide whether the arrest is justified and whether it makes sense to keep a person in jail before they are convicted.
Personal score over personal liberty
In India, both those safeguards are failing. People in positions of power can arrest anyone they want and they often do. They need not even bother to make out a case that will stand up in court. They believe judges will just go along with them.
Together, these two factors could spell the end of personal liberty. If anyone in power wants to fix you, they can and they will.
Don’t take my word for it. Just read the Supreme Court order in the case of fact-checker and Alt News co-founder Mohammed Zubair who was thrice denied bail by lower courts.
“Individuals must not be punished solely on the basis of allegations, and without a fair trial. When the power to arrest is exercised without application of mind and without due regard to the law, it amounts to an abuse of power,” the Court said. It then granted bail to Zubair who had clearly been targeted by the Delhi and Uttar Pradesh police and disbanded the SIT that had been set up by the UP government to investigate his so-called offences. Earlier, the Court had used the phrase ‘police state’ to describe where we may be heading.
Of the two great threats to personal liberty, the misuse of power has now got to the stage where it is almost impossible to fight. Even Aryan Khan, against whom the Narcotics Control Bureau (NCB) now concedes there is no case, had to spend almost a month in jail despite all of Shah Rukh Khan’s resources because of a single publicity-hungry officer. But that officer was emboldened to misuse his position because in some previous cases, he had actually been encouraged by politicians.
Misuse of agencies and missing court
The truth is that politicians at the Centre and the states routinely use the police forces (and revenue authorities) to settle personal scores, and to target critics. Over the last few years, the misuse of agencies has reached new heights.
When politicians have no respect for personal liberty and order arrests indiscriminately, it is silly to expect policemen and bureaucrats to not follow their example. Once a policeman knows that his bosses are asking him to victimise innocent people, why should he hesitate to settle a few scores of his own? Or to line his pockets?
The onus of protecting personal liberty, therefore, falls on the judiciary. And that is where the greatest cause for concern lies. For some years now, many of us have been repeating, like stuck records, that judges seem to have forgotten the old dictum that ‘bail is the rule and jail is the exception’.
Nobody has paid the slightest attention to our entreaties. You can blame Sameer Wankhede for Aryan Khan’s arrest. But let’s not forget that many judges agreed with Wankhede. Looking at the same evidence that the high court later said was not enough to justify keeping Khan in custody, the lower courts decided that he had to remain in jail. Likewise with Mohammed Zubair, Munawar Faruqui and countless others. So, if judges will not protect personal liberty, then who will?
The Supreme Court has now felt obliged to remind those manning the justice system of what every first year law student knows. Every arrested person has a right to bail unless there is a need to keep them in jail to prevent them from “tampering with or destroying evidence, to prevent them from influencing or intimidating potential witnesses or when it is not possible to ensure their presence in court.”
The Zubair order comes on the heels of another order by the Supreme Court restating the right to bail. Chief Justice N.V. Ramana has spoken in a similar vein at a public function. Clearly, much of the Court has finally got worried by the tendency of judges to believe whatever the police say and to send people to jail automatically.
And well it might. According to one estimate, there are about two lakh bail applications pending in various courts all over India. Of these, 18,000 or so have been pending for more than five years. I can see why the judiciary has a problem clearing the backlog (not enough judges, not enough courts, etc.), but should it needlessly add to the burden by unnecessarily sending people who have been convicted of no crime to our overcrowded jails?
SC needs to speak in one voice
Assuming that the Supreme Court is now concerned about the threat to personal liberty posed by the actions of the executive and the inaction of the judiciary, what happens now?
One reason why judges don’t give bail to individuals, it is said, is because they know that the judicial process is so slow in India that guilty people will never go to jail. At least this way, the guilty pay some price. This may be intuitively appealing but it is hardly what jurisprudence should be about. And even if you accept this argument, it may apply at best to major crooks or dangerous criminals. Here it is applied to people who tweet or are caught smoking hash.
It has been suggested (by the Supreme Court itself) that new legislation should be passed on the right to bail. Lawyers are not even sure that this is necessary. The Chief Justice can simply take steps on his own. He has enough power to ensure that the court’s guidelines are accepted. In any case, the whole purpose of the Collegium system of appointments was to make the Court independent.
But you could also argue that even within the Supreme Court, there is no unanimity on the issue. On Wednesday, the Court upheld the most stringent and controversial parts of the Prevention of Money Laundering Act (PMLA), 2002 including a provision which made it difficult for accused persons to get bail. This was not necessarily a ringing endorsement of the right to liberty. So could it be that even within the Court there are different views?
It is hard for us, on the outside, to be sure. But one thing is clear: now that much of the Supreme Court has begun to re-assert the principle of the right to liberty, it cannot stop now. And the Court must speak in one voice on the subject.
The very character of our democracy is at stake.
The author is a print and television journalist, and talk show host. He tweets at @virsanghvi. Views are personal.
(Edited by Prashant)