In the Name of Law

By Vaidushya Parth

A line of a judicial order I read a few months back, where a Court relied upon metaphor to justify keeping an accused individual behind the bars, has stayed with me ever since because it raises a remarkably restless thought. If you’re wondering about that line, it was this: “… when you choose to play with embers you cannot blame the wind to have carried the spark a bit too far and spread the fire.” This is, albeit, a routine idiosyncrasy of Indian Courts to the question in relation to individual's liberty.

States do not have the power to detain or arrest their citizens, except in a narrow range of defined circumstances, as established by the law. The Courts, on the other hand, as sentinels on the qui  vive, are duty bound to protect citizen's liberty.

Among all kinds of arrests, the arrest made under the preventive detention laws is subject to the most stringent standard of judicial review and proportionality, because it effectively involves liberty infringement of persons neither convicted of, and nor accused of, a crime, and proceeds upon the mere likelihood of the possibility of future crime.

The recent cases of political dissidents, under the Unlawful Activities (Prevention) Act (UAPA), throw some restless and edgy thoughts. A closer observation at the UAPA [one of India's special criminal legislation] confirms what Mahajan and Mukherjea JJ. in Gopalan's case rightly observed that ‘preventive detention was repugnant to democratic constitutions and its inclusion in our Constitution was unfortunate, especially when no other democratic Constitution was found to provide for preventive detention.’

The  UAPA, with its s. 43D(5), makes it tougher to get bail by adding an extra condition to those already existing in the Criminal Procedure Code 1973, restricting the possibility of an accused being released on bail. Thus, in effect, reversing the presumption of innocence.

Generally, in criminal cases the burden to establish the guilt of an accused rests on the state. This dovetails with the essential principle of every accused having a presumption of innocence in her favour.

However, section 43D(5) of the Act restricts courts from granting bail to a person if “on a perusal of the case diary or the [police] report ... [the court] is of the opinion that there are reasonable grounds for believing that the accusation against such a person is prima facie true.”

In any criminal trials, the case diary and the charge-sheet reflects the position of the state, and under the UAPA, as long as the state’s standpoint shows to make out an offence, a court cannot, under law, grant bail. Upon reading the provisions of this Act, it would suffice to add that it  almost gets impossible to get bail once charges are framed in such cases if the public prosecutor opposes bail. Thus, an incarceration, under the UAPA, effectively results into a long imprisonment without any trial, which goes straight against the sacrosanct rule of law.

The UAPA is not only an isolated point; albeit, there is an entire curve of statutes carrying these stringent clauses. For example, inter alia, Section 37 (amended in 1989) of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS]; Section 51A (inserted in 2002) of the Wildlife Protection Act, 1972; Section49(7) of the Prevention of Terrorism Act, 2002.

What it effectively does is, reverses the burden of proof and presumption of innocence and the maxim tends to be reversed from “bail is rule and jail an exception” to “jail is rule and bail an exception”. And when these statutes are challenged before the court of law, the state argues of tilting the balance towards the amorphous concepts of ‘national security’ and ‘greater good’ which further goes on to strengthen the criminal-stereotyping principles. To add to the agony, this position is also upheld by the Indian SC in Kartar Singh v. Union of India.

The theory accepted both by English and Indian Courts is that in detaining a person preventively, the State is not punishing him but is merely preventing him from doing acts which it is suspected he might otherwise do. But, the way in which political prisoners are treated in jails has raised the question whether there is any justification for preventively detaining  persons in jails. This clearly goes against the concept of preventive detention. The distressing experiences narrated by eight officials who had been preventively detained, made Justice J. C. Shah, in his “Shah Commission Report”, to observe: "Man's inhumanity to man seems to know no limits at all - of the officials it is still worse".

Views expressed are author's own and do not necessarily represent the editorial stance of Kashmir Observer

  • Author is reading law at the School of Law, Narsee Monjee Institute of Management Studies. He writes on constitutional law, procedure, and economics

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