Shekhar Gupta: Indian judiciary and law of Habeas Porcus

It's the prime responsibility of judiciary to ensure our liberty and habeas corpus is the usual route. But 'bail, not jail' is being murdered and cremated routinely

The headline of this week’s National Interest isn’t a typing mistake. Neither is it a reference to any meat someone may detest or relish. If it sounds like a rude cheap shot, it is because it’s intended to be so. It is inspired by a real-life parallel, to make an important point at a time when in our judicial system, the original dictum — bail is the rule, jail an exception — has been reversed.

Ask any crime reporter worth her knowledge of the IPC, what do police officers say in private about the tactic tried, tested and perfected over decades to curb crime in their districts or states.

It is called “burking” crime, because curbing crime through old-fashioned policing, investigation, prosecution is onerous and uncertain in its outcome. It is wisest to register as little as possible. It is the safest and surest way to curb crime. Your slate then looks brilliant and annual confidential reports with ‘outstanding’ written all over them follow.

Similarly, if the prime responsibility of our judiciary is to ensure our liberty, habeas corpus is the usual instrument a citizen arrested unfairly trusts to secure redressal in the courts. And if the default order is to deny it, it corrupts the idea as much as the police ‘improving’ its crime counts by not counting.

It is a challenge to decide which institution has declined over the recent decades, the police or the judiciary. But today, if you are someone the powers that be don’t like, they can easily find police officers to file a case with serious sections from the IPC, never mind if they don’t have a shred (or iota, which our judges prefer in their orders) of evidence.

You might still think, certainly, they still have to produce me before a magistrate who would easily see through the police case that’s thinner on evidence than Coronil, if even that. And once the magistrate sees that, the order will be determined by that immortal line from the legendary late Justice V.R. Krishna Iyer: Rule is bail, not jail.

Contrary to our belief, that Krishna Iyer line wasn’t immortal. If anything, it’s been murdered and cremated routinely, and at least three times in recent days. Check the cases of Munawar Faruqui, Nodeep Kaur and Disha Ravi. Our choice of three very young and vocal people is a conscious one.

One was facing a charge of offensive jokes he was apparently “inevitably” going to crack. So, locked up for intending to commit a crime, or for what legalese would call mens rea (motive) without a crime actually committed. In the second, Nodeep had a charge of attempt to murder, the formidable Section 307 IPC against her. And in the third, it was worse, sedition.

In each case, the first magistrate, where a citizen needs justice and protection of her liberty most of all, acted as if on the principle that the rule is jail, and bail is above my pay grade.

Nodeep Kaur was given bail by the Punjab and Haryana High Court essentially because it found no real evidence to justify IPC 307 yet. The courts she went to earlier, at two levels in the district, didn’t see through that. She spent 45 days in jail undeservingly. Of course, no one would call those judges to account, not even the high court.

Faruqui was denied bail in three attempts. Even the Madhya Pradesh High Court read him a sermon and sent him back to jail. The Supreme Court mercifully let Faruqui go. But he’d already spent 36 days in jail. And even a day in jail, or your liberty denied any which way, affects you deeply. Read what he told our reporter Bismee Taskin.

Others arrested with him, Prakhar Vyas and Edwin Anthony, were given a kind of knock-on interim bail for the sake of parity with Faruqui. But two others, Nalin Yadav and Sadaqat, were denied multiple times — Nalin's 3rd bail application was denied, along with Faruqui's by the high court, while Sadaqat's second bail application was denied by the trial court, which said since Faruqui only got interim bail, Sadaqat cannot be given benefit of parity for regular bail. Mercifully, both of them finally got interim bail from the high court Friday.

Illustration by Binay Sinha

Disha Ravi was arrested by the Delhi Police in Bengaluru on a Saturday. She was flown straight to Delhi and produced before a magistrate who sent her to five days’ police custody first — and two more later — overlooking the ‘sketchy and scant’ evidence for the sedition charge that his additional sessions judge found later. We celebrate the inspirational lines that judge Dharmender Rana wrote in his bail order, and we must. But the cruel fact is, a citizen was denied liberty for 10 days. Seven in a police dungeon, three in Tihar.

Forget what you think of her politics. She is a citizen entitled to the same protections of law and the Constitution as you and I. Delhi Police say they followed the lawful process fully in her arrest and they are right. They took the help of the local police, and produced her before a magistrate within 24 hours, which is the law.

Now see it from Disha Ravi’s situation. She is whisked away on a plane, without a lawyer, produced in a court where she cannot reach a lawyer of choice, and then in the lock-up. As if she were some Dawood Ibrahim. Now think. What if this magistrate made the same decision as Judge Rana did 10 days later and gave her bail? How soon could a young person from a distant city produce somebody to stand bail for her? Who would have ensured she reached Bengaluru the same day? Nobody will raise this with either the Delhi Police or the magistrate.

In the same week that we celebrated the belated bail orders for these three, came the sobering word from the Allahabad High Court. Aparna Purohit, the India content chief of Amazon Prime Video, heads the crew that produced the Saif Ali Khan-starrer OTT series Tandav, now facing multiple FIRs for alleged insults to Hindu Gods.

Denying her anticipatory bail, the judge at the High Court made the chilling observation that “actions of the applicant being against fundamental rights of majority of citizens, her fundamental right of life and liberty cannot be protected by grant of anticipatory bail”. Hold your breath and fill your bail bonds.

And we were taught all this while that in a democratic, constitutional republic like ours, the first principle is that each individual’s rights matter foremost. That claims or rights of any collective cannot extinguish my rights as a citizen. In democracy, you get powers with numbers. If justice is also number-driven, we are a mob. We can pick and lynch.

It is possible that Aparna Purohit will also get bail in the Supreme Court. Which will both be justice and a travesty of it. Because, in 2014, in what is called the Arnesh Kumar case, the Supreme Court had set a stiff test for making arrests in cases where punishment was less than seven years.

Arnesh Kumar was charged under IPC section 498-A (dowry harassment etc.) and feared arrest. Denied anticipatory bail, he reached the Supreme Court. Which gave him relief and laid down that to arrest a person on a charge attracting less than seven years in jail, a police officer has to be satisfied that it is necessary to prevent another crime, destruction of evidence or threat to witnesses.

Further, a check-list for arrest is to be duly filled, with reasons clearly stated and produced before the magistrate, but at least in Munawar's case among the ones I mentioned earlier, this was allegedly observed in cavalier breach.

Travesty it will be because not everyone, in fact not most people so denied, will have the wherewithal to reach the highest court. Even if they do, they would have spent weeks in jail already. And indeed, even if the court insists on the seven-year-sentence test it set in the Arnesh Kumar case, the police-political nexus couldn’t care less. Sedition, with life sentence, is their favourite weapon against those they want in jail, if only for a few weeks.

By Special Arrangement with ThePrint