Recent events such as the unjustifiable incarceration of Binyak Sen in Jharkhand, the Arushi murder case, and denial of bail to children and women protesting state callousness towards the victims of the Bhopal catastrophe show how regimes of police power continue to blight and even annul the letter and spirit of Indian constitutionalism.Human rights to liberty are becoming a casualty in contemporary India. With distressing regularity, government appointed committees — from the Malimath to Jeevan Reddy and beyond — continue to advocate a politically expedient agenda for criminal justice and police reform, elevating ‘security’ considerations over the fundamental liberties of Indian citizens. Our rights remain at the mercy of a callous and corrupt sovereign. A steady emphasis on increasing the arbitrary powers of detention, far from being a panacea, thrives on a profound disregard for human rights in the administration of criminal justice. The crisis stands deepened by the Supreme Court’s recent decision in the Jessica Lall murder case, denying the accused, Manu Sharma, of the right to bail pending appeal — what is extraordinary is that in doing so, it perniciously suggests that conviction in the first instance provides sufficient justification for denial of this basic human right. Indeed, in plain words, the Court rules that because a person has been convicted by a competent criminal court, she may no longer claim the presumption of innocence, even when the conviction has been fully appealed against!The brutal murder of Jessica Lall and the manner of the acquittal of the accused by the trial court rightly provoked an unprecedented partnership between human rights activists and the media. This marked a new and precious form of public audit of the miscarriage of justice. Understandably, no activist tear has been shed at the denial of bail to a prime accused in the case. Many of us may still regard the denial of right to bail, as an act of justice towards a high profile accused Yet critiquing the judicial performance in the instant case remains important because at stake remains the constitutional integrity of the human right to liberty. Far from constituting a question of technical law, human rights and social movement activists ought to attend more closely to the ways in which the Court here proceeds to deny bail pending appeal, if only because they coequally remain thus exposed to state/law repression. The counsel for the accused argued that because Manu Sharma had ‘a good chance of his appeal being allowed’ and this circumstance justified his being released on bail on such terms and conditions that the Court may prescribe. This was an entirely sincere constitutional request, based on a long line of judicial decisions, which the Supreme Court fully unfortunately declined. At stake, indeed, was the cardinal principle of a rule of law based society: the presumption of innocence till proven guilty beyond reasonable doubt. The Supreme Court itself has remained aware that balancing the claims of liberty with public security is an onerous responsibility. Yet, it has consistently placed the claims of security over liberty, and held it erroneous to equate denial of bail as constituting a part of punishment. It has constantly ruled that granting bail ‘is the rule and refusal the exception.’ It reiterates the venerable principle that if ‘the appeal would not be heard for long’ and not ‘disposed of within a measurable distance of time,’ the power to grant bail ought to be exercised in favour of the right of citizen liberty. It even endorses an earlier authoritative precedent which regards it as ‘travesty of justice’ to ‘keep a person in jail for a period of five or six years for an offence which is not found not ultimately committed by him.’ The Court further says that such denial of liberty remain fully ‘incompensable’ and ‘unjustified’ in the event of a later acquittal. Given this superb record of fidelity with precedent, the result in the Manu Sharma case represents an extraordinary adjudicative somersault. The Court now proceeds to hold that ‘once a person has been convicted, an appellate court will proceed on the basis that such person is guilty.’ Once such determination is made, clearly, the usual litany concerning discretion to grant or not to grant bail, invoking grounds such as ‘the nature of accusation,’ the ‘manner in which crime is alleged to have been committed,’ the ‘gravity of the offence’, etc., stand fully eclipsed. No more scandalous proposition may be found in the annals of contemporary human rights jurisprudence. Should this doctrine now constitute the rule of law for contemporary India, no Indian citizen howsoever convicted by a trial court may ever entertain any prospect for the realization of a human right to bail pending an appeal. Because the Supreme Court now insists that when ‘a person has been convicted’ she ‘cannot be said’ to be an ‘innocent person until a final decision is rendered’ in her favour, it is now likely that denying bail during the pendency of an appeal against conviction may become the rule rather than an exception. So extraordinary is this judicial articulation as to invite a comparison with the shades of the notorious Internal Emergency Supreme Court Shiv Kant decision, which denied the elemental right to habeas corpus to Indian citizens.In holding further that an appeal is ‘likely to be heard within a measurable distance of time,’ the Court organizes an amnesia of the annual Law Day rituals, where the chief justices of India, and the leaders of the Indian Bar so regularly lament the law’s delays. Justice C. K. Thakker, who delivered this decision, is a celebrated author of a leading treatise on Indian administrative law and one expected from His Lordship a greater concern for the denial of natural justice and fundamental human rights. One may only hope that a larger Bench may now proceed to overrule this egregiously wrong decision, thus salvaging its hard-won respect as a bastion of human rights protection.The writer is Professor of law, University of Warwick, and former Vice Chancellor of Universities of South Gujarat and Delhi U.Baxi@warwick.ac.uk
