It’s Denial of Right to Liberty

By Mohd. Naushad Khan

Rejection of bail to Ex D.U. Professor G.N. Sai Baba and former student leader Dr. Umar Khalid is a grim reminder of misuse of law and encroachment of an individual’s right to liberty. The misuse of the provisions of bail laws is not a new phenomenon but these days it has become a routine affair. All efforts are being made and all provisions being manipulated to deny bail repeatedly – a phenomenon considered by many legal luminaries to be denial of a person’s right to liberty.

A senior Supreme Court lawyer, in a tweet, said, “The rejection of Umar Khalid’s bail by the Delhi HC is unjust. There is absolutely no credible evidence against Umar reg his involvement with any conspiracy or violent activity. On the contrary videos of all his speeches show him preaching non-violence even in response to violence.”

Noted author, Tavleen Singh tweeted, “Easy to lose faith in Indian justice when Umar Khalid not convicted of any crime continues to be denied bail. And the men who gang raped Bilkis Bano and smashed in the head of her three year old daughter get their life sentences shortened.”

“O horror, horror, horror!/ Tongue nor heart cannot conceive nor name thee! …/ Confusion now hath made his masterpiece.” These lines from William Shakespeare’s Macbeth were my first thoughts on learning that the Supreme Court had ‘suspended’ the Bombay High Court order discharging G.N. Saibaba, thereby continuing his detention, effectively declared illegal by the High Court. There are several reasons for these thoughts, one of them being that the suspension order in a case of discharge by the SC is unprecedented and, to the best of my knowledge, not supported by any previous order of the top court. Is this the beginning of another new abnormal? These lines were expressed by Justice (Retd.) Madan Lokur in an article, “Strange Case of G.N. Saibaba and the Supreme Court, Another New Abnormal,” (The Wire, 19 October, 2022), when G.N. Saibaba was denied bail.

Notably, on 11 July, 2022, the Supreme Court issued orders directing courts and investigating agencies to avoid making “unnecessary” arrests, and urged the government to draft new bail laws in order to expedite bail process. There is no specific provision on bail under the Constitution, according to a bench of Justices Kaul and M.M. Sundresh, hence bringing the bail law is seen to be of urgent necessity.

The Judges took into account the fact that the country’s conviction rate is “abysmally low.” The Supreme Court issued these instructions claiming that the current state of the legal system which exhibits a high number of arrests exhibits a colonial mindset and gives the appearance of a “police state.” “In a democracy, there can never be an impression that it is a police state, as both are conceptually opposite to each other,” the bench said.

The court also made the following important observations and issued the following directives:

  1. Persons charged with the same crime must never be treated differently, whether by the same or different courts.
  2. Whatever may be the nature of the offence, a prolonged trial, appeal, or revision against an accused or a convict under custody or incarceration would be violative of Article 21.

Speaking at an event recently, then Chief Justice of India, N.V. Ramana, spoke about how the process is the punishment in our criminal system. He said that from hasty indiscriminate arrests to difficulty in obtaining bail, the process leading to the prolonged incarceration of undertrials needs urgent attention.

On 18 October, Dr. V. Suresh, General Secretary, PUCL, in a statement, said, “PUCL expresses its serious concern over the hurried manner by which the SC permitted the Government of Maharashtra to move an urgent appeal on Saturday 16th October, 2022 against the acquittal/discharge of Prof. Saibaba and 5 others by the Nagpur Bench of the Bombay HC on 14th October, 2022. It’s troubling that a well-reasoned judgment of the Bombay HC acquitting Prof. Saibaba and others which pointed out to serious shortcomings in the prosecution case relating to mandatory procedural safeguards was suspended.

“What is also worrying is that the Supreme court stayed an order of acquittal passed by a competent court in a criminal appeal. It is not as though the state has no remedies to challenge acquittals through ‘due process of law’. However, when the State, by invoking an extraordinary procedure ensures a stay of a judicial order of acquittal, it seriously threatens the very basis of ‘Rule of Law’. It raises the question as to whether a person convicted under the UAPA will ever benefit from an appellate court acquitting him or her. This has implications for the very fundamentals of criminal and constitutional jurisprudence in India. The fact that this order is a precedent of the highest court of the land, will embolden states to press for stay of acquittal orders, thereby threatening the right to personal liberty.”

The PUCL statement further said, “This extraordinary alacrity shown by the Supreme Court in disregarding established conventions, is not disregard of procedure to serve justice better; rather it is a disregard of procedure to suspend a jurisprudentially rigorous judgment of the Bombay High Court which has kept faith with the Constitution.”

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