Every year we celebrate Independence Day with joy and remember the freedom fighters who led the country in difficult times. They fought for our freedom and later came together to make the constitution. One such name in that list is the Father of our Constitution, Dr. BR Ambedkar.Â
Our constitution is a living document. It consists of fundamental rights, and among them is the right to life and liberty (Art 21) and protection with respect to conviction for offences (Art 20). These two rights are absolute rights since they do not get canceled even when a national emergency is imposed.Â
Liberty is important
The supreme court has often emphasized liberty while delivering various judgments, provisions and how a person can be deprived of his liberty. It has to be through a procedure established by law. While Article 21 defines the same, the Supreme Court, using its interpretation tool, has interpreted it and has given it a much wider scope. It now covers different matters in its ambit related to the environment, education, privacy, right to undertrials, etc.
Kappan, Md Zubair, Setalvad and Varavara rao : Bail not Jail
Siddique Kappan, a journalist, was released after 704 days in jail on bail granted by the Supreme Court. He was traveling to Hathras in the month of October 2021. To meet the Hathras gangrape victim’s family and cover this story. He was arrested in Mathura and booked under various sections of the Unlawful Activities Prevention Act (UAPA).
The police claimed he was linked to the radical organization Popular front of India (PFI). The court granted him bail, seeing the time he had spent in jail.
Zubair, another journalist, was jailed based on an FIR lodged against him in Uttar Pradesh for allegedly hurting religious sentiments by calling Mahant Bajrang Muni ‘Udasin’, Yati Narsinghanand, and Swami Anand Swarup “hatemongers” on Twitter. He was booked under IPC Sections 153-A (promoting enmity between different groups) and 295-A (malicious act intended to outrage religious feelings).
Following this, different FIRs were lodged in various districts of Uttar Pradesh. The accused reached the Supreme court for quashing various FIRs lodged and also applied for interim bail. The supreme court took note, that the FIRs lodged in different districts of Uttar Pradesh showed vengeance and allowed him bail.
A Delhi court granted bail to Alt News co-founder Mohammed Zubair in connection with the 2018 tweet case, weeks after he was arrested. Bail has been granted on a personal bond and surety of ₹50,000. The fact-checker will be unable to leave the country without the permission of the court, the verdict said.
Teesta Setalvad, a social activist, was arrested over allegations of destabilizing the Gujarat government after the 2002 riots took place. She stayed in jail for just 63 days. Although in between, she applied for bail in the district court, she did not succeed. Later, bail was granted by the Supreme Court.
Varavara Rao, a Telugu poet-activist was arrested in 2018 on charges of the Unlawful Assembly Prevention Act (UAPA) in the Bhima Koregaon case. He is 82 years old and was granted bail by the Supreme Court on medical grounds.
All the above-mentioned cases show a common trait, i.e., the grant of bail. Criminal jurisprudence is inspired by the theory of granting bail, while jail is an exception. It can be traced back to the decision of the Allahabad High Court in Emperor vs. H.L. Hutchinson (1932). In this case, trade unionists were accused of having conspired against the empire. They were granted bail, as the court exercised the principle of bail as the rule.
If we read sections 436 (bailable offenses) and 437 (non-bailable offenses) of the CrPC (Criminal Procedure Code). It makes it clear, that the emphasis of the legislature is to secure bail as the rule while jail is the exception.
A new hope : Is it for real?
The theory has been rejuvenated under the newly appointed Chief Justice of India, Honourable Justice U.U. Lalit. Although he has a tenure of just 74 days. So, it is too early to make a comment in this regard. But the attempts should be appreciated.
Read More: SC Grants Bail to Mohammad Zubair in all six Cases
