The contours of the right to receive bail | Guest Post by Rasveen K. Kapoor

(This is a guest post by Rasveen K. Kapoor. Rasveen is a student at Indore Institute of Law).  

Arnab Goswami || Siddique Kapan

“A man of courage never needs weapons, but he may need Bail.” 

– Lewis Mumford, American historian

It is the sacrosanct obligation of all concerned with the justice dispensation system to ensure that the administration of criminal justice remains effective and meaningful. Literally, the expression 'bail' denotes a security for appearance of a prisoner for his release. Bail is a grant of conditional liberty to an accused who assures or on whose behalf assurance is given that he would be present at the trial. It is imperative to note that the very idea of bail emerges from an assumption, of the accusatorial framework, i.e.  innocent till proven guilty.

As recognized by the English jurist, William Blackstone, “it is better that ten guilty persons escape, than that one innocent suffer.”  An incalculable wrong is done to an innocent person who spends even a single day in prison. From the date of recording of an FIR till consummation of the trial process and the case decision, the law contains different arrangements to release an accused on bail. Through multiple decisions, the Supreme Court of India has held that bail is a privilege and is significant in a democratic republic, until he is demonstrated liable through a fair trial process.

A Mathura court on November 13^th’ 2020, dismissed the bail plea of three persons, booked on charges of sedition and terrorism after their arrest in Mathura along with a Kerala journalist namely, Siddique Kappan – who was on his way to Hathras village to meet the family of a Dalit woman who died after being brutally gang raped.

This denial of bail must be examined in context with the speed with which Arnab Goswami received bail, after just a single hearing in the Supreme Court. The speedy hearing and the grant of bail to Arnab Goswami has rekindled the moot question regarding the selective treatment of the high and the mighty - “Whether the privilege to fundamental rights is only a prerogative of the riches”?

When bail is refused, it is a restriction on personal liberty of the individual guaranteed by Art.21 of the Constitution and therefore such refusal must be rare. Where delays in the disposal of criminal proceedings take place, the accused ought not to be kept in custody for an inordinately long time and must be released on bail except when under extremely rare circumstances it is not possible to do so.

Personal liberty is recognised significantly in the constitutional framework under Article 21. While considering bail applications of the accused, it is important that the courts balance considerations of personal liberty and the interests of the general public, thereby paving a way for judicial discretion in matters of bail.

 It is the solemn duty of the court to decide the bail applications at the earliest by a reasoned order, based on the bona fides of the applicant in light of prevailing facts and circumstances. The Hon’ble Supreme Court in the matter of State of Maharashtra vs. Sitaram Popat Vital[1] has stated certain points to be considered before granting bail, namely:

1.  The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence
2.  Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant
3. Prima facie satisfaction of the Court in support of the charge.

The Supreme Court had time and again stated that bail is the rule and committal to jail is an exception. Refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.

The Hon'ble Supreme Court in the matter of Prahlad Singh Bhati vs. N.C.T. Delhi and Ors[2] has mentioned some relevant grounds that play a vital role in deciding the bail applications being, the possibility for repetition of crime, the time lag between the date of occurrence and the conclusion of the trial, illegal detention, and undue delay in the trial of the case.

It has been regarded by the Hon’ble Supreme Court in the case Babu Singh and Ors. V. State of U.P. [3] that, deprivation of personal liberty by refusal of bail applications blurs the great trust exercisable as on the part of the judiciary as an institution, not casually but judicially, with lively concern for the cost to the individual and community. Personal liberty of an accused or convict is fundamental, and shouldn’t be subjected to suffering lawful eclipse in terms of the procedure established by law. 

In all these cases, the common condition attached is that the person released on bail will be brought before the court on demand. Other conditions may be imposed as may be deemed appropriate. It may be stated in passing that in the event of delivering custody to the state by way of refusal of bail to the accused or his surety the court may set out other conditions for the benefit and enjoyment of liberty by the accused.

Legislative prescriptions governing inmates in prison may be said to be serving this end. These regulations have to be in conformity with the themes of such human dignity as are now being expounded by the court as a part of human rights jurisprudence in general and personal liberty in particular.[4]

Passionate pleas for personal liberty are often being made while seeking release of an accused person in pre-trial cases. This approach is expressive of the conscious assertion to protect the individual rights. The pre-emptive rule of “Bail Not Jail” as regarded in Khemlo Sakharam Sawant v. State of Maharashtra[5] , vis-a-vis Article 21 should not be ignored. Though judicial discretion in matters of granting bail is imperative, but selective treatment by judiciary in matters of personal liberty dwindles the very faith of an individual in the credibility of judiciary as an institution.

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[1] State of Maharashtra vs. Sitaram Popat Vital AIR 2004 SC 4258.

[2] Prahlad Singh Bhati vs. N.C.T. Delhi and Ors AIR 2001 SC 1444.

[3] Babu Singh and Ors. V. State of U.P., (1978) AIR 527, 1978 SCR (2) 777.

[4]  D.C. Pandey, "Criminal Law", XVI ASIL 452 et. seq. (1980).

[5] Khemlo Sakharam Sawant v. State of Maharashtra 2002 (1) BOM C.R. 689.

Book Review: The Great Repression by Chitranshul Sinha | Guest Post by Sarthak Bhardwaj

 (In this post, Sarthak Bhardwaj reviews The Great Repression: The Story of Sedition in India by Chitranshul Sinha. Sarthak is a 3^rd year law student at Vivekananda Institute of Professional Studies, Delhi). 

The Great Repression, by Chintranshul Sinha, chronicles the 150 year-old story of sedition in India. The law of sedition is a hotly contested issue and much has been said about it over the years - that it is colonial, oppressive, draconian, against free speech, and so on. One might naturally ask, how did we get here, and what is the road ahead? In answering these questions, Chintranshul Sinha takes the reader on a socio-legal history of India, starting right from the establishment of the first East India Company factory in Surat in 1613.

The book covers three spheres. It discusses sedition’s origin story, its early life during the British Raj, and then in independent India. The first part tells how the emergence of sedition (and, in fact, the entire penal code) is proximately linked to the revolt of 1857. After managing to quell the uprising, administrative control and power was transferred from the East India Company to the British Crown. 

This hastened the process of codification of Indian criminal laws. The Indian Penal Code was formulated in 1860, but Section 124A (the provision governing sedition) was inserted only in 1870. The most immediate need for this insertion, Chintranshul Sinha suggests, arose because of the Wahhabi Movement, which aimed to overthrow the British government.

The Indian Wahhabi movement, started by one Syed Ahmed, was initially against the Sikh empire in northwest India. However, when the British defeated the Sikhs, the movement took shape of a radical anti-British movement in India.  In 1863, the Britishers unearthed a conspiracy to supply money and ammunition to the Wahhabis to fight the British in the North Western Frontier Province. This led to the trials of some notable Wahhabi leaders. Thereafter, a need was felt by the British government to amend the Indian Penal Code (IPC) and provide for seditious offences.

The second section of the book enumerates how sedition evolved in its early life. Here, Chintranshul Sinha familiarises the reader with the legendary trials of Bal Gangadhar Tilak, Gandhi, Nehru, Azad, and the rest. It is observed how the Raj used sedition as a tool to stifle dissent and liberty of their subjects. Mahatma Gandhi’s trial exemplifies it best. His arrest was the result of four articles published in his magazine - Young India. The articles were considered to be incendiary by the Raj, for they supported the Khilafat Movement and exhorted Indian sepoys to quit serving in the British army.

Interestingly, Gandhi, without engaging a lawyer, pled guilty to the charge and refused to call any witnesses to testify in his defence. Gandhi, during his trial, submitted to Judge Broomfield, that he must first consider whether the law of sedition was evil and punish him with the severest penalty if he found that it was not. He called upon the judge to resign and dissociate himself from evil if he found otherwise. The offence of sedition - at that time - criminalized the mere promotion of disaffection against the government. It is known that Judge Broomfield held Gandhi in high regard, and therefore was reluctant to punish him.

However, it was accepted that Gandhi was no ordinary leader, and that his political teachings possessed a capability to spark violence amongst the masses. Thus, Gandhi was sentenced to six years of simple imprisonment. At the same time, Judge Broomfield expressed hope that the British government would reduce the sentence in the future. And, this is how Gandhi’s legendary trial came to an end. Lasting only for a glorious hundred minutes!

The third segment studies the position of sedition in modern Indian history. One would reasonably believe that an undeniably repressive law like sedition - responsible for the incarceration of the most prominent figures of the Indian independence movement - would  promptly be rejected by the framers of our Constitution. The reality, however, tells a different story. 

Leaders like Sardar Patel and C Rajagopalachari advocated for the retention of seditious speech. This inclusion was vehemently opposed by Somnath Lahiri, and finally the word ‘seditious’ from the proviso of Clause 8 of the draft interim report on fundamental rights was omitted. Despite passionate debates on freedom of speech and expression, the notorious Section 124A continued to find a place in our statute books.

There were some early attempts to decriminalise sedition by the courts, notably by the Punjab and Haryana High Court in the Tara Singh Gopi Chand case. But, in 1951, the Nehru government revalidated sedition by making it a reasonable restriction under Article 19 (2) – through the First Amendment to the Indian Constitution.

The author also succinctly discusses landmark cases like Kedar Nath Singh, Balwant Singh, and Bilal Ahmed Kaloo to reaffirm the prevailing and settled position of sedition, i.e., to attract punishment under Section 124 A of the IPC, incitement to violence or public disorder (and not merely promoting disaffection towards the government) is required. However, sedition still marks a great imbalance of power between the individual and the State, and is a tool of oppression in the hands of the government.

As Chintranshul explains, arrests under this provision are seldom in accordance with the prevailing position of law. For instance, sedition charges are slapped for celebrating a neighbouring country’s victory in a cricket match, for refusing to stand during the national anthem or for publishing satirical cartoons. It is interesting, therefore, to note that the book opens with a prescient word of caution from Justice D.Y. Chandrachud. The book, quoting Justice Chandrachud says, “the Constitution fails when a cartoonist is jailed for sedition.”

The book, thus, makes a strong case for the repeal of Section 124A - as has already been done in UK - the country of its origin. The Great Repression acts as an excellent primer in understanding the history of sedition in India. Despite its intensive legal content, the book is readable and can quite easily be understood by those outside the legal fraternity. The Great Repression is a riveting tale of where this (now) antiquated law came from, its evolution, and place (if any) in the world’s largest democracy.

The custodial death of Jayaraj and Bennix in Tamil Nadu : An eye-opener on custodial atrocities

The custodial death of Jayaraj and Bennix at the hands of the Police has rightly evoked outrage in the State of Tamil Nadu. Jayaraj and Bennix (Jayaraj’s son) ran a mobile phone shop in the town of Sathankulam. They were arrested by the Sathankulam Police over an altercation that took place regarding a purported ‘lockdown violation’, as they had kept their shops open beyond the permitted hours. The father-son duo were beaten and tortured to death at the hands of the Police in the Sathankulam Police Station.

After multiple rounds of police brutality, Jayaraj and Bennix were taken to the Sathankulam Government Hospital, where their clothes were soaked in blood. The bleeding was so severe that their veshti (dhoti) had to be changed on multiple occasions. After receiving some treatment at the hospital, they were taken to the Sathankulam Magistrate Court, where the Magistrate supposedly just waved his hand from the first floor – and directed their remand to Police custody in Kovilpatti Sub-Jail. Bennix and Jayaraj ultimately succumbed to their ordeal on June 22^nd and 23^rd respectively.

Now, there can be no justification for such acts of Police brutality and custodial torture, which violate every known tenet of the ‘right to life and personal liberty’ guaranteed by Article 21. But, let us also not forget the dereliction of duty on the part of the Magistrate, who remanded Jayaraj and Bennix back to Police custody without having them physically produced before him in Court. Under Section 167(2)(b) of the Criminal Procedure Code, 1973, a Magistrate cannot authorize the detention of an accused person -  without having the accused person produced before him physically. 

The Magistrate failed to comply with this provision, and also failed to gauge the extent of torture inflicted by the Police Officers. Jayaraj and Bennix were remanded to custody for a trivial ‘lockdown violation’, and not for any heinous offence. If the Magistrate had applied his mind and directed their release, they may not have succumbed to their ordeal.  Along with the need to find methods to curb Police brutality and custodial torture, this case also highlights the need the make Magistrates accountable for their orders, and to prevent them from colluding with the Police to remand the accused back to custody.

Let us now address the issues of police brutality and custodial torture, which have been highlighted by this untimely death. On social media, parallels have been drawn with the unfortunate death of George Floyd, who was an African-American living in the city of Minneapolis. Last month, a Caucasian (white) Police Officer named Derek Chauvin kneeled on George’s neck for precisely 8 minutes and 46 seconds - after handcuffing him on the ground that he had attempted to use counterfeit currency. Despite George’s repeated utterances of ‘I can’t breathe’, Derek refused to remove his knee from George’s neck, as his fellow Police Officers looked on.

Darnella Frazier, a 17-year old girl who was passing by, recorded this entire incident on her phone. Once her video went viral, a national movement began against racial injustice, and police brutality towards the African-American community. George Floyd’s parting words of ‘I cant breathe’ became one of the slogans that symbolized this movement.  Apart from ensuring speedy justice for George Floyd, protesters and ‘Black Lives Matter’ activists have also called for defunding the Police, and other reforms to limit wide discretionary powers granted to Police Officers.

If Derek Chauvin’s actions would not have been recorded by the 17-year old Darnella Frazier, we would not have personally witnessed how inhumane and horrific his actions were. Akin to Jayaraj and Bennix’s situation, we would have only heard anecdotal reports of the incident. The fact that the police brutality was video recorded and available for everyone to personally witness is one reason why George Floyd’s death generated more outrage than other racially motivated Police atrocities of the past.

In the legal front, this movement has gone on to have some positive impact, with both Democrats and Republicans proposing police-reform legislation. Last week, the US House of Representatives, which is controlled by the Democrats, passed the George Floyd Justice in Policing Bill. This police-reform legislation bans chokeholds, prohibits certain types of no-knock warrants, and seeks to establish a national database to track police misconduct.

Creation of a national database to track police misconduct may be especially significant to take action against officers like Derek Chauvin - who had an errant track record with more than a dozen complaints pending against him. Even if this Bill is stalled in the Republican-controlled Senate, it signals the first step towards police reforms after a national movement.

While this national movement was on, another African-American man named Rayshard Brooks was shot in a parking lot by Garrett Rolfe, an Atlanta Police Officer.  Garett Rolfe has subsequently been suspended and charged with murder. This incident highlights how police brutality against African-Americans is deeply embedded in the system, and in society. Such a systemic and societal problem cannot be resolved solely by a change in laws, and would also require a change in mindset.

Similarly, in India, torture and violence in police custody is a problem that is both systemic and societal. On multiple occasions, Police Officers have targeted inmates on caste and communal lines. Such targeting of prisoners on communal lines was also poignantly portrayed in Paatal Lok - an Amazon Prime blockbuster which showed us how custodial atrocities are so deeply embedded in our police system. The murder of Jayaraj and Bennix is neither the first nor the last instance of custodial atrocities.

While we demand speedy justice for both of them, let us also call for concrete steps to curb all forms of custodial atrocities. While we have multiple reports on police reforms submitted by Committees such as the Julio Riberio Committee, and directions for police reform given by the Supreme Court in the Prakash Singh judgment, regulating custodial atrocities has not received significant attention. Just as George Floyd’s death was an eye-opener for racial injustice, Jayaraj and Bennix’s death serves as an eye-opener on the malaise of custodial torture.

This malaise of custodial torture can be curbed through a legislation that prohibits and penalizes all kinds of custodial atrocities committed by Police Officers. Although a law shall only be the first step in this fight, it is an important starting point to make errant Police Officers accountable. Another important step here is to devise a mechanism to take swift action against errant officers who have pending complaints against them. As George Floyd’s death at the hands of Derek Chauvin showed, taking action against errant officers is the first step in preventing police brutality.

Instead of taking police brutality for granted and trying to live with a broken system, let us call for far-reaching changes.

The denial of bail to Safoora Zargar – Is our criminal justice system no longer humane?

“The significance and sweep of Art. 21 make the deprivation of liberty a matter of grave concern, and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Art. 19.... Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose, but for the bi-focal interests of justice - to the individual involved and society affected……..Public justice is central to the whole scheme of bail law”.

-         Justice V.R. Krishna Iyer, in Babu Singh v State of UP, AIR 1978 SC 527

On 4^th June, the Patiala House Court refused to grant bail to Safoora Zargar – who is in the 21^st week of her pregnancy. Safoora was booked under the Unlawful Activities (Prevention) Act, 1967 (the UAPA) for allegedly ‘instigating’ the East Delhi riots, which took place in the last week of February. The charge against Safoora was framed for committing the offence mentioned in sub-section (iii) of Section 2(o) of the UAPA, which deals with the commission of an ‘unlawful activity’ that causes or is intended to cause ‘disaffection’ against India. Now, under clause (5) of Section 43D of the UAPA, for offences punishable under Chapter IV and Chapter VI of the statute, bail cannot be granted when the Court is of the view that a prima facie case has been made out by the prosecution.

Chapter IV deals with the commission of a terrorist act, while Chapter VI deals with offences relating to membership of a terrorist organization. The statute forbids the Court from granting bail only when a prima facie case is made out for offences that fall under Chapter IV and Chapter VI. This does not apply for other offences, such as the offence of causing (or attempting to cause) disaffection against India, which Safoora has been accused of. For such other offences, the existing jurisprudence on bail shall be applicable. The bail order fails to note this distinction, and only examines whether there is prima facie merit in the charges made against Safoora.

Existence of a prima facie case against the accused is only one among the many factors that the Court is mandated to take into consideration, while deciding whether bail is to be granted. As the Supreme Court has noted in decisions such as State of Maharashtra v. Sitaram Popat and Prasantha Kumar v. Ashis Chatterjee, there are multiple other factors that the Court has to take into account while considering a bail application. Some of these factors are  – (i) the nature of accusations and the severity of punishment in case of conviction; (ii) reasonable apprehension of tampering of evidence/ influencing of witnesses; (iii) reasonable apprehension of threat to the complainant; and (iv) danger of the accused absconding. The Court failed to consider any of these factors, and only determined whether there is prima facie merit in the charges framed.

Let us apply some of the factors mentioned above to Safoora’s case. The charge framed against Safoora under the UAPA is for causing disaffection against India, which is a charge framed by the prosecution in most instances where there are fervent protests against the establishment. As per the bail order, the overt act through which ‘disaffection against India’ is caused is the attempt to block a road. Now, this is an overbroad interpretation of the ambit of the term ‘disaffection’, especially in a scenario where there is no concrete material to support the claim that Safoora incited violence. In any event, Safoora is not accused of a heinous crime such as murder, or attempt to commit murder. 

As the police already claims to have documentary evidence (such as Whatsapp chats) and video footage of the alleged actions of Safoora, there is no possibility of any large-scale destruction of evidence or influencing of witnesses. There also exists no reasonable apprehension of Safoora absconding. Even without considering the aspect of pregnancy, there were other grounds on which the Court could have granted bail. The Court does not even refer to these grounds which it ought to have considered under well-established bail jurisprudence. Granting of bail in any case would not have affected the veracity's of the charges framed by the prosecution, which shall be determined only at the trial stage. 

Let us now come to the Court’s approach to the defence counsel’s claim that bail should be granted on humanitarian grounds, as Safoora was in the 21^st week of her pregnancy. Safoora was also reported to be suffering from poly cystic ovarian disorder, and had a reported history of urinary tract infection. The defence counsel also highlighted that all the three jails in Delhi have reported positive cases of Covid-19, and her situation becomes all the more vulnerable in this pandemic. The Court fails to even address these contentions in its order, and attempts to salvage the situation by ‘requesting’ the jail superintendent to provide medical aid and assistance to Safoora. However, even if medical aid were to be provided from time to time – that is not in any way a justification for denying bail to a pregnant woman.

This is because pregnancy is a process that is physically and psychologically draining, where access to a clean, hygienic and conducive environment is crucial. A jail cell obviously cannot provide a conducive environment. This, along with the lack of hygiene, may increase the chances of catching Covid-19, as well as other infections - which may lead to complications in the pregnancy. The inability to ensure effective social distancing in jails only exacerbates the problem – and increases the risk of contracting the coronavirus. The Court failed to take note of these health risks which a pregnant woman may have to face in jail. 

This failure to secure Safoora’s personal liberty and right to health under Article 21 is nothing short of callous and inhumane.  As Justice Krishna Iyer held in Babu Singh’s case, public justice is central to the whole scheme of bail law, as depriving bail may amount to an unreasonable deprivation of ‘life and personal liberty’ under Article 21. One does not need to be a lawyer or a law student to figure that keeping a pregnant woman in jail poses a risk to her life and her health. If a pregnant woman who is subjected to vague charges of ‘blocking a road’ cannot be granted bail, then we must ask ourselves the question – Is our criminal justice system no longer humane? Let us all be the judge.

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Update: On 24th June, Safoora Zargar was finally granted bail by the Delhi HC. Solicitor General Tushar Metha, who was representing the Delhi Police before the HC, stated that he shall not be opposing the bail plea on humanitarian grounds. 

As we debate larger questions surrounding the UAPA, Safoora Zargar's case serves as an epitome of the manner in which this law denigrates civil liberties, and suppresses all forms of dissent against the State.