Jail is The Rule And Bail Is An Exception Now And Journalists Have To Seek Legal Opinion On Their Articles Before Publishing: Sr. Ad. Rebecca John [Video]
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"Remand is a judicial function of foremost importance. The discharge of this function by the magistrates must not be mechanical, but there must be application of mind", said Senior Advocate Rebecca John on Friday.A prominent criminal lawyer, Ms. John was addressing the virtual audience at a webinar organised by Live Law on 'The Right to Dissent'. Former Supreme Court judge, Justice Deepak...
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"Remand is a judicial function of foremost importance. The discharge of this function by the magistrates must not be mechanical, but there must be application of mind", said Senior Advocate Rebecca John on Friday.
A prominent criminal lawyer, Ms. John was addressing the virtual audience at a webinar organised by Live Law on 'The Right to Dissent'. Former Supreme Court judge, Justice Deepak Gupta, was also a panelist at the event.
Speaking of the recent instance of implication of activist Disha Ravi in the Toolkit case and her remand to police custody, Ms. Johnson called out the procedural lapses in such deprivation of liberty.
"The CrPC has cognizable and non-cognizable offences, bailable and non-bailable offences. This young lady was charged for a cognizable and non-bailable offence. So no warrant was needed for her arrest. She was picked up from Bangalore last Saturday by the Delhi police and brought to Delhi. Within 24 hours, she was produced before a magistrate as per section 57 of the CrPC. Although there is no violation of the said section 57, but I have pleaded before several forums that the police ought to have taken transit remand", she expressed.
"There is a Delhi High Court judgement, by the division bench of Justices S. Muralidhar and Talwant Singh, which says that when the police is picking up a person from outside their jurisdiction, the accused has to be given an opportunity to consult their lawyer before they are taken outside the state where they reside and have to be produced before the nearest magistrate having jurisdiction to seek transit remand. Such magistrate must also apply his mind before granting such remand and not allow the same mechanically...", explained Ms. John.
The Delhi High Court has issued guidelines that must be followed by the police of one State, when they go to some other State or Union Territory, to effect an arrest while investigating a complaint or a First Information Report (FIR) disclosing a cognisable offence. A Division Bench of Justice Muralidhar and Justice Talwant Singh has asked Delhi Police to implement the recommendations given by a Committee headed by Justice SP Garg which was constituted by the court to look into the issues involved in the present matter.
Continuing, Ms. John pointed out that Ravi was produced only in Delhi on Monday, and she had to plead her own case. There was only a legal aid lawyer who, apparently, did not even have a copy of the FIR. Subsequently, she was remanded to 5 days' police custody. "I am told that she had a lawyer of choice because the police had told him when she was going to be arrested. Why was he not called when she was produced before the magistrate? Today also, the same craziness happened as regards where she was going to be produced. Fortunately, her lawyer did appear today", she remarked.
"Remand is the foremost important judicial function! Why is the remand function treated so casually? Personal liberty is inherently linked to the procedural law and if the law is not followed, it results in a gross infringement of a person's liberty and the right of an individual to fair trial. I cannot emphasise enough the duty of the magistrate to carefully look at the FIR, the case diaries, the nature of the investigation to determine whether further remand is needed", she stressed.
She narrated an ominous instance where the accused suffered 8 days in custody before it dawned on the Magistrate that all the offences in question were bailable- "Recently, I had some clients see me in connection with a second or third remand. The first 15 days had not yet elapsed. I noted that all the offences in the case were bailable. This was in connection with the Delhi riots case. I also noted that no further offences had come to be added since the last remand application. It was only after eight days in custody that the magistrate realised that all the offences were bailable, for which they had come to be remanded, and finally release them! This shows the lack of application of mind! And this was in Delhi, not some obscure corner of the country!"
"The structure of the CrPC is such that the investigation is to be completed in 24 hours. If the same is not accomplished, then the police is required to take the accused to the nearest magistrate. Custody can be extended for 15 days at a time, for a maximum of 60 days or 90 days, depending upon the nature of the offence and the gravity of the case. After the 60/90 days, the person is entitled to be released on statutory bail if the police has still not completed the investigation", she explained.
"Why must bail be the be-all and end-all of criminal law? Everyone is entitled to bail! If one is found to be guilty after the trial, they may be incarcerated or awarded such sentence as is deemed adequate. But why should we celebrate pre-trial incarceration? Why are the courts hesitant in releasing the accused on bail? The importance of bail today has become such that the moment the bail is granted, the case is deemed to be over! Today, bail seems to have become the exception, while jail is the rule for the prosecuting authorities!", commented Ms. John.
On the throttling of dissent
Ms. John lamented how the UAPA is being increasingly invoked to put behind bars persons the state does not want to deal with – academics, students, public policy experts, some of whom are the foremost citizens of the country.
"There is an overlap of sedition laws with the UAPA-the latter defines 'terrorist activities' clearly. And by the definition, the act must be inherently violent! So why, if someone has given a speech somewhere or dissented to any policy or statement of the government, is the UAPA being used? It is so because the Act enable the State to seek the maximum custody of 180 days, rather than the routine 90 days, and it is a law where bail is virtually impossible", she reflected.
She advanced that today it has become the norm for journalists to seek legal opinion on their articles before publishing the same, and even for senior journalists to have their tweets overlooked before putting them out.
"What kind of regime is this? Are we not made of thicker skin? Why can't we look at criticism constructively, even if the criticism is extreme...and criticism can be extreme...", she exclaimed.
She cited the example of the Scottish independence movement, which was settled by a referendum. "The entire nation participated and it was decided that Scotland would remain with UK", she said.
Ms. John also indicated the 1995 Quebec independence referendum in Canada, on whether the French-speaking Canadian province of Quebec should proclaim national sovereignty and become an independent country. "It was also settled through a narrow referendum!", she commented.
"If such extreme cases of whether a country should remain with a Union can be settled by civilised, cultured means, the here we are only dealing with an individual or an organisation who has put out a critique! Why must go into that it is not palatable, or that it is antinational, or against the State?", she wondered.
"Talking about the vulnerable sections of the society-the adivasis, the women, the scheduled castes and scheduled Tribes - is a deeply patriotic function! These persons care about the individuals not getting state attention! Why must they be prosecuted?", questioned Ms. John
"India is a diverse country. We should celebrate this diversity! Why should every person think the same way? Why must I be identical as the next person? Why can't I be different?...In the last one year, the colour of my hair has changed! So what?...Why must we all talk in one language, in one narrative? Why can we not criticise the government?", she demanded.
She continued to express regret that the issue is not getting adequate leadership from the courts, particularly the superior courts-"It is important that the courts intervene and say 'Stop! Free speech is protected under the Constitution! There is no relation to violence or any incitement to violence! We won't allow our citizens to be incarcerated in such manner!"
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