Appearing for the Delhi Police, on Tuesday, Solicitor General Tushar Mehta said he had no objection to the release of Jamia Millia Islamia student Safoora Zargar on “humanitarian grounds”. The 27-year old was arrested by the Delhi Police’s Special Cell in April and charged under the draconian UAPA for her alleged role in the communal violence in Northeast Delhi in February.
In her bail plea, Zargar had listed pregnancy as one of the grounds for seeking relief. Following the SG’s submission, the Delhi High Court granted her bail. But the 27-year old’s more than two-month old ordeal — she was denied bail twice by sessions courts in Delhi — raises fundamental jurisprudential questions. Why was the cardinal principle of criminal justice, “presumption of innocence until proven guilty” — enshrined in Article 11(1) of the Universal Declaration of Human Rights and invoked by the Indian judiciary in a number of cases — not applied in this case? Why should an accused be compelled to seek bail on humanitarian grounds? Doesn’t the right to life and liberty, guaranteed by Article 21 of the Constitution, offer protection against prolonged imprisonment to an undertrial?
The Code of Criminal Procedure does not define bail. But in Gurbaksh Singh Sibbia vs the State of Punjab (1980), the Supreme Court underlined, “The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial”. The Court talked about Article 21 and added that “personal liberty of an accused or convict is fundamental, suffering eclipse only in terms of procedure established by law”. More recently, in 2018, in Dataram Singh vs State of Uttar Pradesh, the apex court held that “the grant of bail is the general rule and putting a person in jail is an exception”. Delivering the verdict, Justice Madan Lokur lamented: “Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods.” He, too, invoked Article 21 and said that overcrowding of prisons affects the “dignity” of convicts.
The SC has repeatedly emphasised the “humane” treatment of the accused, including in the Dataram Singh case. As the Court pointed out, “conditions for the grant of bail ought not to be so strict as to be incapable of compliance”. It flows from the spirit of the apex court’s rulings, therefore, that bail should not be made to appear as an act of charity, as in the Zargar case — because it emanates from constitutional principles.