Bail by 'Rule of law, not Rule by law'

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the Watali prevents the courts from even assessing that. This is uncivilized criminal jurisprudence and clear decline of judicial standards.

PinjraTod activist Natasha Narwal and Bhima-Koregaon accused Sudha Bharadwaj lost their fathers as they languished in jail. The Indian State acted inhuman in not letting them meet their beloved, before their demise. The courts did not come to their aid. In the second wave of the corona-19 pandemic, our higher judiciary tried to acquit itself from the accusation of being an extension of the government by its belligerent stand as constitutional courts.

Today the courts grapple with the taint of the death of Fr. Stan Swamy. His bail pleas on medical ground did not find the compassion and sensitivity at a time when the political climate is very disturbing. The permission to get treatment in a private hospital did not bring any glory to the Bombay High Court and the remorse shown by the court failed ward off the stain brought by an insensitive approach to the octogenarian activist.

The Indian Judicial system which Perry Anderson, the Marxist historian described as the most powerful on earth, stands broken and diminished. Probably the most embarrassing moment created by the highest court for the entire judicial system is what is called as the ‘Watali’ Judgement of 2009 (National Investigation Agency V/s Zahoor Wahab Watali). It holds that every allegation in the F.I.R is to be treated correct at bail stage. It has almost decreed that NIA is the best judge of liberty of citizens by putting an embargo on judges analyzing evidence in Unlawful Activities Prevention Act (UAPA) cases. The Watali judgement has reduced the courts to post offices of NIA.

Sudha Baradwaj is a victim of Watali. Her bail is rejected despite the documents used by the NIA being inadmissible in evidence- they are undated, their authors unknown and documents not recovered from her- but Watali has slammed the doors of the courts to go into inadissibility at bail stage. In the Bhima-Koregaon case the NIA has 200 witnesses. Trial has not yet begun. In a few weeks Sudha Baradwaj will complete two years incustody. Many in custody may meet Fr. Stan’s fate. Never before the premier Investigative agency has been accused of planting evidence to fix the accused. but the Watali prevents the courts from even assessing that. This is uncivilized criminal jurisprudence and clear decline of judicial standards.

A.P.Shah former CJ of the High Courts of Delhi and Madras rightly sees this judicial decline as being co-terminus with the current political regime. Without any formal emergency in place, an atmosphere laced with fear is created through the misuse of judicial process at the bail stage to terrorise political opponents and those who disagree with the ruling establishment. The ED, CBI and IT are unleashed on them, who otherwise have too many skeletons to hide. Like Mayawati, they fall in line fast, whether at election time or in formation of state governments or in dismantling State governments. Mamata Banerjee may be an exception who enjoys a good fight (not forgetting Siva Kumar from Karnataka!) Nobody can guess how long Uddav Thakeray and Sharad Pawar shall hold on. Even P. Chidambaram the former home minister got a chill of that disturbing atmosphere.

But social activists, public intellectuals and students deserve a stronger dose like Sec. 43 D(5) of UAPA, a law designed to break their spirits and rob them of their will to live. A 2019 amendment making an individual a terrorist is extremely lethal. What more can a government expect from the highest court than a Watali Judgement which fits perfectly into an authoritarian mindset?

To hell with civilized criminal jurisprudence! It is this position on current bail jurisprudence in our country that Fr. Stan had to plead for mercy-bail on two hernia operations, intense abdominal pain from lumbar spondylitis, tremors in both hands due to Parkinson’s disease. It is irony that the Jesuit priest who always fought to get bail for incarcerated tribals, himself died in judicial custody. The only solace in this gloomy situation is the admission of the Attorney General led Indian Bar Association (IBA) that his death brought disrepute to the Indian legal system. With international and national outrage the government ran for cover. They claimed an independent judiciary, free media and a vibrant and vocal civil society complements our system.

It is this in context that the role of independent judiciary as protector of life and liberty is seen. But we saw a weak judicial system total failing to stand up against a robust majoritarian government. Constitution stands does not get eclipsed in times of crisis, even if Bhima-Koregaon is considered such a flashpoint.

Law is always dynamic. Even in U.S the courts broadened police-powers in war times when the situation warranted, despite preventive detention was foreign to their land. A CJI N.V. Ramana led bench provided a glimmer of hope in a Kerala case of 2010 where the accused of chopped hands of a college professor it ruled- “it does not take away the power of the constitutional court from coming to the rescue of the accused when his fundamental rights are undermined”. K.A Najeeb got advantage of inordinate delay in trial. The Bhima-Koregaon accused are less fortunate.

Death of Fr. Stan is a symbol of injustice. It only highlights the broken system. His death can’t go in vain. It is bound to create a lasting impact on the bail jurisprudence. We require a course correction and a fresh look at our draconian laws and how they are administered. The ‘Watali’ Judgement deserves a reversal. It is only expected that Supreme Court shall rise-up to acquit itself by restoring India’s image as a land of ‘rule of law’, not ‘rule by law’. The Bhima-Koregaon accused must get their liberty back.