heyOne of the major differences between an authoritarian state and a liberal democracy is the freedom that an individual enjoys. That freedom is in danger in today’s India. It’s not just free speech—though, of course, it’s also a problem. This is the right to freedom.
In our country, virtually anyone who is in power – a minister, a bureaucrat, a policeman, a revenue service officer or even someone who has friends in power – can arrest and jail any of us. can be sent. In most circumstances, even if there is no case, the person concerned will spend at least a month in jail.
Why does this happen in India and not in other countries that we consider to be liberal democracies? two reasons.
A: In most modern democracies, those in power are made to obey the spirit of the law and respect individual liberty. This is not to say that there is no abuse. But there are strong checks and balances. Officers ordering an arrest for no reason are usually sanctioned and, in many Western democracies, you can sue the officers for wrongful arrest.
Two: All laws work only when one is in authority who respects justice. This is the job of the judiciary. When the police arrest someone without reasonable cause or when they seek prison custody, it is up to the judges to decide whether the arrest is justified and whether it makes sense to keep a person in jail before being convicted. Comes.
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Individual Score on Personal Freedom
In India, both those safeguards are failing. People in positions of power can arrest anyone they want and they often do. They don’t even need to make up a case that will stand in court. He believes the judge will walk with him.
Together, these two factors can spell the end of personal freedom. If someone in power wants to fix you, they can and will.
Don’t take my word for it. Read the Supreme Court order in the case of fact-checker and Alt News co-founder Mohammad Zubair, who was denied bail thrice by lower courts.
“Individuals should not be punished on the basis of charges alone and without a fair trial. When the power to arrest is exercised without consideration and without regard to the law, it is an abuse of power. the court said, It then granted bail to Zubair, who was apparently targeted by the Delhi and Uttar Pradesh police, and dissolved the SIT set up by the UP government to probe his alleged crimes. Earlier, the court Used The phrase ‘police state’ to describe where we are going.
Of the two great threats to individual liberty, the abuse of power has now reached a level where it is almost impossible to fight. Even Aryan Khan, against whom the Narcotics Control Bureau (NCB) no longer considers a case, had to spend almost a month in jail for being a publicity-hungry officer despite all the resources of Shah Rukh Khan. But that officer was encouraged to abuse his position because in the past few cases, he was actually encouraged by politicians.
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Misuse of agencies and missing courts
The truth is that politicians at the Center and in states regularly use police forces (and revenue officials) to set individual scores and target critics. In the past few years, the misuse of agencies has reached new heights.
When politicians have no respect for individual liberty and order indiscriminate arrests, it is foolish to expect policemen and bureaucrats not to follow their example. Once a policeman finds out that his boss is asking him to victimize innocent people, why would he hesitate to settle some of his own account? Or to loose your pocket?
Therefore, the responsibility of protecting individual liberty falls on the judiciary. And this is where the biggest cause for concern lies. For the past few years, many of us have been repeating like a stuck-on record that judges seem to have forgotten the old adage that ‘bail is the rule and jail is the exception’.
No one paid any heed to our requests. You can blame Sameer Wankhede for Aryan Khan’s arrest. But it should not be forgotten that many judges agreed with Wankhede. Taking into account the same evidence which was later held by the High Court that Khan was not sufficient to justify his detention, the trial courts decided that he would have to remain in jail. Likewise with Mohammad Zubair, Munawwar Farooqui and countless others. So, if judges won’t protect individual liberty, who will?
The Supreme Court has now felt obliged to remind those governing the justice system what every first-year law student knows. Every arrested person has the right to bail so long as they are kept in jail “to prevent tampering or destruction of evidence, to influence or intimidate potential witnesses or when it is not possible to ensure their presence in court”. do not require. .”
Zubair’s order comes on the heels of another order by the Supreme Court restoring the right to bail. Chief Justice NV Ramana made a similar statement at a public function. Obviously, the tendency of judges to obey the police and send people to jail on their own has alarmed many courts.
and may. According to an estimate, approximately two lakh bail application Pending in various courts across India. Of these, 18,000 or so are pending for more than five years. I can see why the judiciary has a problem in clearing the backlog (not enough judges, not enough courts, etc.), but should it unnecessarily increase the burden by sending people who are convicted of no crime in our overcrowded prisons? Have you been convicted?
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SC needs to speak in one voice
Considering that the Supreme Court is now concerned about the threats to the actions of the executive and the personal liberty posed by the inaction of the judiciary, what happens now?
It is said that one of the reasons why judges do not grant bail to individuals is because they know that the judicial process in India is so slow that the guilty will never go to jail. At least that way, the guilty pay some price. It may be innately appealing but it should hardly be about jurisprudence. And even if you accept this logic, it may best apply to big rogues or dangerous criminals. Here it applies to people who tweet or are caught smoking.
It has been suggested (by the Supreme Court itself) that a new law on the right to bail should be passed. Lawyers aren’t even sure it’s necessary. The Chief Justice can only act on his own. He has sufficient power to ensure that the directions of the court are accepted. In any case, the whole purpose of the collegium system of appointment was to make the court independent.
But you can also argue that there is no unanimity on this issue even within the Supreme Court. On Wednesday, the Court upheld the most stringent and controversial parts of the Prevention of Money Laundering Act (PMLA), 2002, including a provision that made it difficult for accused persons to get bail. It was not necessarily a vigorous support of the right to liberty. So could it be that there are differing views even within the Court?
It’s hard for us, from the outside, to be sure. But one thing is clear: now that the Supreme Court has begun to emphasize the principle of the right to liberty, it cannot stop. And the court should speak in one voice on this subject.
The very character of our democracy is at stake.
The author is a print and television journalist and talk show host. He tweeted on @virsanghvi. Thoughts are personal.
(edited by Prashant)