Good governance implies justice and fairness and should be responsive to the possibility and magnitude of the Abuse of Law by the various agencies or /and corrupt policemen enjoying ample powers to verily mislead courts & easily implicate any person to any extent by misinterpreting facts of the case and the abuse of law.
The root of all evil is the misuse of the Law and the problem isn’t in the abuse of power but in the power to abuse. Many people denuded of their fundamental rights stand impoverished and broken, languishing in jails on frivolous assumptions and presumptions after provisions of Narcotic Drugs & Psychotropic Substances (NDPS) Act have been misused and invoked against them. Also, in many States of India one keeps hearing and reading about the ulterior motives behind fake/false/bogus cases to settle hostilities, rivalries or extort money.
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Large number of undertrials in prison have been languishing for considerable periods, which may be possibly more than half the sentence period, if they indeed were prosecuted and found guilty in court, had the trials happened. Many may have died in the past or dying or may die in the future during the course of their trial or without a trial……waiting for their bails to be granted so that they may be released from legal custody until their trial.
Bail under NDPS Act is extremely difficult and it is then that an undertrial facing trial realises that our legal process is in itself a punishment and so strange and mystifying that the undertrial is relegated to the role of silent spectator though the issues concern his future, his liberty and even his life.
The NDPS Act promulgated in 1985 remains so draconian, exploitative and prone to misuse that it poses a disaster for citizens and a blessing for agencies of this Act and many corrupt policemen. The legal doctrine of ‘Bail is a rule, jail is an exception’ was laid down by Supreme Court in 1970’s enforcing the right to life and liberty guaranteed by Article 21 of Indian constitution. Section 439 of the Code of Criminal Procedure (CrPC) accordingly grants courts power to grant bail to a person accused of committing a crime. However, NDPS Act is an Act where the principle of ‘innocent until proven guilty’ is reversed to ‘Guilty until proven innocent’. However, in drugs related cases which are dealt under the Narcotic drugs and Psychotropic Substances (NDPS) Act 1985, granting of bail to an accused arrested in a drugs case are dealt with under Section 37 of the NDPS Act where it is the onus of the accused to prove his/her innocence if the police or the Narcotic Control Bureau (NCB) tell the court that granting bail could hamper investigation into the bail. Further, Section 35 of the NDPS Act lays down the principle of presumption of ‘culpable mental state’ which in simpler words means that an accused arrested under the NDPS Act is presumed to have intention, motive and knowledge of the drugs related crime he or she is charged with. The accused charged under this Act has to prove that he or she does not have a ‘culpable mental state’ before the court to secure bail. The liability is on the accused to dispel the courts presumption of his culpable mental state.
Right of bail to an undertrial flows from Article 21 of the Constitution of India which frowns upon unnecessary and prolonged detention pending judicial adjudication of guilt.
Now, whether an Act repugnant to its constitution can become the law of the land is a question deeply interesting. The constitution is either supreme paramount law, unchangeable by ordinary means or it is on a level with ordinary legislative acts, and, like any acts is alterable when the legislature shall please to alter it.
If the former part of the alternative is true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. So, if a law in opposition to the constitution, if both the law and the constitution apply to a particular case, so that the court must either decide that case comfortably to the law, disregarding the constitution; or comfortably to the constitution disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of the judicial duty and of paramount importance because when decisions are delivered, they are often destined to have the widest ramifications.
After all if the court can frame a charge or convict a person under a law that is repugnant to the constitution, would not it be entitled to discontinue any proceedings for the benefit of the accused under cover of such a law. Courts are human institutions composed of judges who bear the awesome responsibility of keeping Indian Life and Indian Liberties secure.
Why does a Judge swear to discharge his duties agreeably to the Constitution, if that Constitution is closed upon him, and cannot be inspected by him?
The judiciary is often looked upon not only as the last resort but as the only efficacious source of remedy for the violation of the fundamental and constitutional rights and for seeking redressal of issues related to entitlement of fundamental rights. Courts must provide a breakthrough in fundamental rights and a jurisprudence closer to the needs of undertrials. After all our Supreme Court of India has brought a lot of ‘Rights’ jurisprudence through Article 21 of the Constitution.
We need to respond to the need for the emancipation of the undertrials languishing in jails on account of their bails rejected and raise them to the fullest status under the protection of the law till their guilt is established and till they are convicted of any offence.
It is the constitutional duty of the State to ensure effective and speedy prosecution and the government should provide substantial compensation for any wrongful detention or arrest.
(The author is an Advocate, International Law Consultant and Human Rights Activist)
