Both #PinjraTod activist Natasha Narwal and Bhima-Koregaon accused Sudha Bharadwaj lost their fathers as they languished in jail. The Indian state acted irrational & inhuman in not letting them see their beloved, once before their demise. The courts did not come to their aid. In the second wave of the Corona-19 pandemic, our higher judiciary tried to acquit itself from the accusation of being an extension of the government by its belligerent stand as constitutional courts, it grapples with the taint of the death of Fr Stan Swamy. His bail pleas on medical ground did not get the compassion and sensitivity at a time when the political climate was very disturbing.
The permission to get treatment in a private hospital did not bring any glory to the Bombay High Court and the remorse of the division bench failed ward off the stain brought by failure to show humane approach to the octogenarian activist and the Bhima-Koregao accused. The Indian Judicial system which Perry Anderson, the Marxist historian described as the most powerful on earth, stands broken and diminished. Probably the most embarrassing problem created by the highest court for the entire judicial system is what is called as the Watali Judgement of 2009 (National Investigation Agency v/s Zahoor Wahab Watali). It holds that every allegation in the FIR is to be treated correct at bail stage. It has almost decreed that NIA is the best judge of liberty of citizens by putting an embargo on judges analysing evidence in Unlawful Activities Prevention Act (UAPA) cases. The Watali judgement has reduced the judges as post offices of investigative agencies. Sudha Baradwaj is a clear victim of Watali. Her bail is rejected despite the documents used by the NIA being inadmissible in evidence they are undated, their authors not known and not recovered from her but Watali has slammed the doors of the courts into those issues at bail stage.
In the Bhima Koregaon case the NIA has 200 witnesses. Trial has not yet begun. Many in custody may meet Fr Stan’s fate. Never before the premier Investigative agency has been accused of planting evidence to fix the accused but the Watali prevents the courts from assessing that. This is uncivilised criminal jurisprudence and a clear decline of judicial standards. AP Shah, former chief Justice of the High Courts of Delhi and Madras, sees this judicial decline as being co-terminus with the current political regime.
Without any formal emergency in place, an atmosphere laced with fear and terror is created through the misuse of judicial process at the bail stage to ‘punish’ political opponents and those who disagree with the ruling establishment. The ED, CBI and IT are unleashed on political opponents who otherwise have too many skeletons hide. Like Mayawati, they fall in line fast, whether at election time or in formation of State governments or in dismantling State governments. Mamata Banerjee be an exception who enjoys a good fight. Nobody can guess, how long will Uddav Thakeray or Sharad Pawar hold on. Even P Chidambaram the former home minister got a chill of that disturbing atmosphere. But social activists, public intellectuals and students require a strong dose of unprecedented and draconian bail provisions like sec. 43 D(5) of UAPA, a law designed to break their souls and rob them of their will to live.
What more can a government expect from the highest court than a Watali Judgement which fits perfectly into an authoritarian mindset? To hell with civilised criminal jurisprudence! It is this position on current bail jurisprudence in our country that Fr Stan had to plead for mercy-bail on two hernia operations, intense abdominal pain from lumbar spondylitis, tremors in both hands due to Parkinson’s disease. It is irony that the Jesuit priest who always fought to get bail for incarcerated tribals, himself died in judicial custody. The only solace in this gloomy situation is the stand of the Attorney General led Indian Bar Association (IBA) that his death brought disrepute to the Indian legal system.
The international and national outrage has prompted the government to run for cover of an independent judiciary, free media and a vibrant and vocal civil society. It is this context that the role of independent judiciary as protector of life and liberty is seen. But in the Bhima-Koregaon we saw a broken judicial system with total abdication of constitutional duty to stand up against a robust majoritarian government. Our higher courts may have thought that constitution stands eclipsed in times of crisis, even if Bhima- Koregaon is considered such a flashpoint. Even in US the courts broadened police powers in war times when the situation warranted, even when preventive detention was foreign to their land.
A CJI NV Ramana-led bench provided a glimmer of hope in a Kerala case of 2010 wherein a popular front activist accused of chopping the hands of a college professor, it ruled “it does not take away the power of the constitutional court from coming to the rescue of the accused when his fundamental rights are undermined”. KA Najeeb got advantage of inordinate delay in trial.
When the IBA claims that Fr Stan had a cruel and unusual institutional mistreatment, his case ought to be a flashlight of appalling injustice. His death can’t go in vain. It will create lasting impact on the privity of bail jurisprudence. India requires a course correction and a fresh look at our draconian laws and how they are administered. The Watali Judgement requires a fresh look and of course a reversal. The Supreme Court has to acquit itself by restoring India’s image as a land of ‘rule of law’, not rule by law. The Bhima-Koregaon accused must get their liberty back.
(The writer is a practising lawyer, senior faculty in law and political analyst)
