A New Hope For Personal Liberty: Bail Not Jail

Liberty over deprivation

On September 9, the Supreme Court granted bail to Kerala based journalist, Siddique Kappan who was in custody since October, 2020 (approximately 704 days). This was not the first time his bail application was moved before a judicial court but on many occasions the same has been dismissed by district court(s) and the Allahabad High Court also recently rejected his bail.

There have been certain other recent instances where the Supreme Court has upheld personal liberty over state curtailment, the first was in the bail application of Teesta Setalvad and now journalist Siddique Kappan. The most important aspects of these two cases were the questions which were tabled before the state from the bench and the state had no "justification" apart from allegations which were based on "toolkit" jurisprudence.

Kappan, Varavara Rao and Teesta: Bail, not jail

For instance, in the bail hearing of Kappan, the advocate appearing for the State of Uttar Pradesh referred the literature as "a toolkit for riots" and said that "the whole purpose of going there was to incite violence. That literature is a tool kit on how you incite violence and the run away from the scene of the offence and conceal your identity."

To which the bench Led by Chief Justice UU Lalit said that every person has the right to free expression and inquired whether is it a crime in eyes of law?

"See every person has the right to free expression and therefore he is trying to propagate an idea that there is this victim who requires justice and therefore let us raise a common voice. Is that something like a crime in eyes of law?"

On a similar footing, a bench headed by Chief Justice UU Lalit granted interim bail to Teesta Setalvad, who was under custody since June 25, over alleged fabrication of documents to file cases in relation to 2002 Gujarat riots. During the course of hearing, many important questions were raised by the bench pertaining to the certain features of the case which bothered the bench. The bench pointed out that the FIR did not have nothing beyond the observations of the Supreme Court judgment in the Zakia Jafri case, and that the same was lodged on the very next day of that judgment.

A bench consisting of Chief Justice U.U. Lalit, Justice S Ravindra Bhat and Justice Sudhanshu Dhulia noted that Teesta was a lady, and has been in custody since 2 months and the investigative machinery has had the advantage of custodial interrogation for a period of 7 days.

"In our view, the appellant is entitled to the release on interim bail. It must be stated that as argued by Solicitor General the matter is still pending consideration before High Court. We are therefore not considering whether appellant be released on bail or not. That issue is to be considered by the High Court. We are considering only from the standpoint whether the custody of the appellant must be insisted upon during the consideration of matter." Reads the order

On August 10, a bench comprising of Justices Justices UU Lalit, Aniruddha Bose and Sudhanshu Dhulia granted bail to Varavara Rao who was booked under the Unlawful Activities Prevention Act in the Bhima Koregaon case for alleged links with banned Maoist organization.

While granting bail to Rao, the Supreme Court took into account Rao's age, his medical conditions and also the two and half year period of actual custody spent by him. The bench also noted that trial is yet to begin in the case and even charges have not been framed although chargesheet has been filed.

"The medical condition of the appellant has not improved to such an extent over a period of time that the facility of bail which was granted earlier be withdrawn. Considering the totality of circumstances, the appellant is entitled to bail on medical grounds", the bench said while deleting the condition imposed by the Bombay High Court that he should surrender after 3 months." reads the order

A new hope for personal liberty

Although it is too early to say but there is a new hope for personal liberty and it also gives a message to the courts below that bail should be the rule and jail is the exception. The recent example can be of Mohammad Zubair, co-founder of Alt News, who was arrested over some alleged tweets and the Supreme Court granted him bail noting that a journalist has a right to express and the same should not be curtailed.

While granting bail to Zubair, Justice DY Chandrachud importantly noted that "arrest is not meant to be and must not be used as a punitive tool"

In this regard, the order of the Supreme Court observed: "Because it results in one of the gravest possible consequences emanating from criminal law: the loss of personal liberty. 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 criminal law and its processes ought not to be instrumentalized as a tool of harassment. Section 41 of the CrPC as well as the safeguards in criminal law exist in recognition of the reality that any criminal proceeding almost inevitably involves the might of the state, with unlimited resources at its disposal, against a lone individual".

We have three different organs – Executive, Legislature and Judiciary and more importantly a fair and independent judiciary. Faith in judiciary is one of most important facets in a democracy, as Late Nani Palkhivala has observed in his book – We, the Nation, the lost decades:

"Evil is more infectious than AIDS, and if unchecked, progresses with an inevitable momentum of its own. It is but one step from forsaking intellectual integrity to forsaking financial integrity. A judge who decides wrongly out of motives of self-promotion is no less corrupt than a judge who decides wrongly out of motives of financial gain."

When we talk about personal liberty, one cannot forget Justice HR Khanna's dissenting opinion in ADM Jabalpur case. In this regard, Late Nani Palkhivala has written is his book, We, the People - that Justice HR Khanna, "the judge who, only a few months before the question his appointment to head the highest court was to arise, ruled in favour of the citizen detained without a charge, without a trial, and without even the authority of any law, was certainly not deflected by worldly ambition."

Palkhivala further writes that "so long as there is a judiciary marked by rugged independence, the citizen's civil liberties are safe even in the absence of any cast-iron guarantees in the Constitution. But once the judiciary becomes subservient to the executive and to the philosophy of the party for the time being in power, no enumeration of fundamental rights in the Constitution can be of any avail to the citizen, because the courts of justice would then be replaced by the government's courts."

The Supreme Court on many occasions have said that personal liberty should be weighed higher. Recently, a bench noted that personal liberty is an important aspect of our constitutional made.

"We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond."

The courts have been quite vocal when it comes to personal liberty, from A.K. Gopalan v. State of Madras (1950) to Arnab Goswami Case, there have been instances where specific directions and observations have been made, but the most important part is the implementation of such orders.

Although, there is a ray of hope from the judiciary, but only one court cannot fill the bridges of injustice. The first and most simple step would be compliance of Arnesh Kumar v. State of Bihar, where specific guidelines have been issued with regard to arrest and curtailment. Pertinent to point out that the Supreme Court in Maneka Gandhi case, observed that the term "personal liberty" under Article 21 of the Indian Constitution has the broadest meaning and encompasses a wide range of rights that contribute to a one's personal liberty.

The Supreme Court in the Arnesh Kumar case held that "arrest brings humiliation, curtails freedom and casts scars forever.

"The need for caution in exercising the drastic power of arrest has been emphasised time and again by Courts but has not yielded desired result," said the Supreme Court. "Power to arrest greatly contributes to its arrogance, and so also the failure of the Magistracy to check it…The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to police officers who lack sensitivity or act with oblique motives."

Although the court was mainly dealing with arrests made related to section 498A of the IPC, dowry harassment, it said these directions would apply to cases where the punishment was less than seven years.

Justice is something which we all seek, but the same has been brilliantly penned down by Fali S. Nariman in his book – India's legal system: Can it be saved? "The Fundamental Rights chapter exhorts the state not to do this, that and the other, and if the state does do so, either by executive order or by law, then such orders or laws can be declared void if they violate any of the fundamental rights guaranteed in the Constitution. But no part of the Fundamental Rights chapter prohibits citizens from practising inequality of treatment to one another; and real justice still escapes us."

Although, Chief Justice, UU Lalit has a short tenure and will be retiring in the month of November, but his tenure is bringing a ray of hope in terms of personal liberty and back-log of judicial cases which are pending before the court. In an interview with Indian Express, just before his appointment as the Chief Justice, he said that 'If (our) action is not up to the mark, stakeholders have a right to comment'

(Areeb Uddin Ahmed is an advocate based in Delhi, Uttar Pradesh and writes on various legal issues. He tweets at @Areebuddin14)