When Bail is a Myth and Jail is a Moral Regulator, Liberty awaits its Eulogy!
Freedom of Speech and expression guaranteed under Article19(1)(a) of the Constitution of India has now become a perennial struggle of satiating dignity for the courts as, the tendency of someone getting offended by caricatures, jokes, tweets are in abundance. The restrictions enumerated for regulation of the said right under Article 19(2) seem to have become stagnant and the State machinery has assumed the regulatory role by adopting incarceration as the recourse. The famous oft quoted guiding principle of “bail is a rule and jail is an exception” is withering in its spirit though on rare occasions few may benefit out of the benevolence of judicial system and its libertarian approach which in itself seems hard to explain with legal certainty for it appears to be stemming from inherent subjectivity.
The judiciary is perceived and is to operate as the guardian of rule of law in the State ensuring that liberties and freedoms of the citizen are not guillotined at the behest of executive exigencies. To quote the Hon’ble Supreme Court in granting bail to Arnab Goswami,
“its important for the courts across the spectrum to ensure that criminal law does not become a weapon for the selective harassment of citizens”
and
“the remedy of bail is the solemn expression of the humaneness of the justice system”.
As much as these ideals seem to be a binding precedent in subsequent bail hearings and to be granted due deliberation and thought, they only remain as ink on paper as courts seem to have turned liberty subservient to other considerations such as perceived notions of respect, dignity, harmony etc.
The dismissal of bail application in Munawar Faruqui’s case seems to have added new chapters to the law of bail which lack any judicial sanction while more fetters are being placed on freedom of speech and expression in its wake.
The bail provisions governed under Cr.P.C. envisages certain procedural requisites in granting of bail. An analysis of the relevant provisions i.e. sec. 436–450 of Cr.P.C. highlights that considerations to be applied by the court in deciding a bail application defer from a hearing on merits for determination of guilt of the accused. This is in tandem with the criminal law principle of “presumption of innocence” which is in favour of the accused. Bail in cases of bailable offence is a matter of right while in cases of non-bailable offence is a matter of discretion vested with the courts. However, there have been sufficient judicial precedents to establish that denial of bail can’t be used as a punitive measure against the accused. In Sanjay Chandra v. CBI (2012) 1 S.C.C. 49 the Apex Court had categorically held that the object of bail is to secure attendance of the accused person at the trial and it is neither punitive nor preventive. Interestingly enough the Court had also held that, refusal of bail as form of disapproval of former conduct of an accused for which he/she was convicted or not for the sake of giving them a “taste of imprisonment” as a lesson is impermissible and legally untenable.
In Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr. (2010) 14 S.C.C. 496 the Supreme Court had laid down certain principles on which a bail application must be tested:
1. nature and gravity of the accusation
2. severity of the punishment in case of conviction
3. danger and possibility of absconding
4. degree of participation of the accused in the investigation process
5. character, behaviour, means, position and standing of the accused
6. likelihood of offence being repeated
7. reasonable apprehension of witnesses being influenced
8. danger of justice being thwarted
The High Court of Madhya Pradesh however, in considering the bail application has not recorded an observation on these factors. The order focuses on the religious sentiments likely to be hurt or have been hurt in the past and “vulnerability of the acts” in the public domain. Interestingly it observes that investigation against the accused is in progress and this in itself seems to be a sufficient ground to deny bail for no discussion or reference is made with respect to the likelihood of the said investigation being hampered if bail is granted. Furthermore, given that all the possible incriminatory material against the accused including the pen drive, recording of the show etc. are already in the custody of the police along with the statement of witnesses produced before the court by them, the need and purpose of further investigation seems to be unclear and upon which the court also has not demanded any explanation.
This shift in the role of the Courts from acting as guardians of liberty of individuals to the assuager of sentiments of the community marks a dangerous departure towards a criminal jurisprudence where the idea of crime and criminal in itself are sufficient to impart punishment. Maintaining law and order is in words of the Apex Court itself a concern of the State machinery such as the police who under its garb are not given a carte blanche to trample individual liberties [S. Rangarajan v. P. Jagjivan Ram, 1989 S.C.C. (2) 574; Arup Bhuyan v. State of Assam, (2011) 3 S.C.C. 377]. The High Court of Madhya Pradesh has legally erred in appreciating the possibility of release of Faruqui on bail.
Appreciation of evidence in a bail hearing is conducted with the aim of deciding whether bail can be granted whose determination is distinct from the probability of the crime having been committed. In the case at hand the evidence relied upon is referring to the past conduct of the accused which has no connection with the event at which his arrest was made. Hence, for over a month a stand-up comedian is behind the bars of a joke that was never cracked and the high court deemed it fit to deny bail on the basis of such evidence and testimonies.
The reference made to the fundamental duty under Article 51A of the Constitution to promote harmony and brotherhood also demands scrutiny for as much as the courts have insisted on adherence of fundamental duties by citizens even if the same aren’t legally enforceable per se [Javed v. State of Haryana (2003) 8 S.C.C. 369 and Minerva Mills v. Union of India (1980) 3 S.C.C. 625] they are not limitations on freedom guaranteed under Art. 19(1)(a) of the Constitution. The operation sphere of the said duties i.e. 51A(e) and (f) doesn’t operate to extend the limitations stipulated under Article 19(2) on limiting freedom of speech and expression. They can only be read with Article 19(2) and not in addition to it. Furthermore, its relevance in a bail hearing seems misplaced for its breach or abidance would also be a discussion on merit of the case and allegations which as has been held by the apex court is beyond the scope of discussion when the question at hand pertains to grant or denial of bail.
When incarceration seems to become a routine to curb the possibility of dissent or difference of opinion the role of judiciary is multiplied manifold. However, in the recent past there has been hesitation on the part of the judicial system to interfere in instances of excessive and unjustified incarceration. In the existing state of criminal law and the outmoded system of custody and arrest, judicial discretion plays a significant role demanding a robust judicial scrutiny of arrests which begins with the objective of upholding liberty and presumed innocence of the accused. The denial of bail to Munawar Faruqui raises serious concerns about the extent to which an individual is “in reality” entitled to freedom of speech and expression and permissible extent of state regulation of the same.
In words of Voltaire “I despise what you say but will defend to the death your right to say it” captures the nuance of freedom of speech and expression and role of judiciary as its guardian. In Indibility Creative Pvt. Ltd. v. Govt. of West Bengal 2019 S.C.C. OnLine S.C. 520 the Apex Court had held the shadow ban on the film Bhobishyoter Bhoot (‘Future Ghosts’) which was a political satire. The court had held that the unwarranted use of police power by the State to cause obstruction was contrary to its positive duty to protect freedom of speech and expression. The judgement in a very elaborative manner discusses the nature of art and artist and the freedom of creative expression. The most important part of the judgement that needs to be quoted verbatim in the prevailing scenarios in the nation is
Contemporary events reveal that there is a growing intolerance: intolerance which is unaccepting of the rights of others in society to freely espouse their views and to portray them in print, in the theatre or in the celluloid media. Organised groups and interests pose a serious danger to the existence of the right to free speech and expression. If the right of the playwright, artist, musician or actor were to be subjected to popular notions of what is or is not acceptable, the right itself and its guarantee under the Constitution would be rendered illusory.
The true purpose of art, as manifest in its myriad forms, is to question and provoke. Art in an elemental sense reflects a human urge to question the assumptions on which societal values may be founded.
The Supreme Court held that subjecting any form of art to extra-constitutional fetters is death-knell for the fundamental individual freedoms and marks the opacity and arbitrariness of the State action.
In the recent past however, the courts seem to have responded in a manner contrary to the above ratio decidendi. Tweets, cartoons have been flagged as threat and elements undermining the State authority rather than viewing them as crticism. Uniformity in application of law is an important facet of rule of law and the judiciary is tasked with its implementation. Application of the law can’t depend on who is the man before the court or who is the judge hearing the case for that would reduce judicial process to a mere game of chance. Munawar Faruqui is one among the many who have been denied bail on grounds that need immediate judicial reconsideration while many other incarcerated await their turn of appearance in the dockets of the court.
The Apex Court and the judicial system of India as a whole including most importantly the Trial Courts need to intervene to set right the balance which is dangerously tilting towards excessive State regulation of freedom of speech, expression, dissent and criticism. For if the State is allowed to assume the role of cultural and moral compass of the society to determine the manner of thought, speech and even laughter with incarceration as the Sword of Damocles, individual liberty and freedom can only await eulogy!
Government without extensive freedom of speech would lack legitimacy and should therefore not be called ‘“democratic”.
Ronald Dworkin