Bail or Jail: Caging the Tiger!
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Bail or Jail: Caging the Tiger!

Mahatma Gandhi’s words loom loud and clear for all of us to hear and follow-“you may never know what results come of your actions, but if you do nothing, there will be no results”

Post by on Sunday, August 7, 2022

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 Howard Zinn has said and I quote-“Protest beyond the law is not a departure from democracy, it is absolutely essential to it.” Recent developments in the Indian judiciary have brought to light the glaring fact that the danger of India turning into a police state is not a fallacy after all. Just like one has not only a legal but also a moral responsibility to obey laws, similarly, one also has a moral responsibility to disobey unjust laws. But what if our right to speak, think and act freely- our right to express dissent is taken away from us? Will the democracy that is India still continue to exist? Those who are always politically correct may avoid taking sides, but the truth is that we must always take sides. Neutrality helps only the oppressor and NEVER the victim…silence encourages only the tormentor, never the tormented and it is this silence that becomes cowardice when the occasion demands speaking out the whole truth and acting accordingly. India, the biggest democracy of the world prides itself on harbouring innumerable communities, religions and castes within its bosom. Tolerance was and has been its middle name.

 

The fundamental right to free speech and the secular status of the country have till date managed to co-exist despite many a tempest. This has only been possible because democracy is about the dialogue, protest is about initiating the dialogue and freedom of speech is all about respecting each other’s dialogue. The true purpose of protest is to provoke a response as such a response always comes from the heart and is the truest one. The trouble is when some people prefer to address the appropriateness of the protest and not the actual issue behind it. The right to protest is the basic right of the Indian citizen. It is what truly makes India a democratic country and keeps the law making machinery on its toes. An individual who breaks a law that his conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law and is further ensuring that the law continues to rule for without debate, without criticism- no administration and no country can succeed and no republic can survive. If there is no debate, there shall be no improvement. If there is no protest, there shall be no debate…. And so it goes!

 

The recent trend of multiple FIRs being lodged against an individual by different people in different parts of the country, especially in matters pertaining to group and communal ideologies has created a situation wherein the individual is made to run from one state to another and from one court of justice to the next. The recent comments from the Apex court of the country have indicated that the time has come to develop a better mechanism for controlling and putting a check on this issue of multiplicity for the same or identical offence. Chief Justice NV Ramana has recently marked –‘urgent’ the issues of "hasty and indiscriminate arrests, difficulty in obtaining bail, and prolonged incarceration of under trials" in comments that assume huge significance given recent events.

 

More and more questions are being raised on the arrests of Mohammad Zubairco-founder of fact-checking website Alt News, by the police in Delhi and Uttar Pradesh, and that of actor Ketaki Chitale in Maharashtra. Zubair was behind bars over a 2018 tweet while Ms Chitale got into trouble over certain social media comments that were supposedly against a veteran politician. Speaking at an event in Jaipur in the presence of Union Law Minister Kiren Rijiju and senior judges of the Supreme Court, Chief Justice NV Ramana even called the process in India's criminal justice system a "punishment"."The challenges are huge. In our criminal justice system, the process is the punishment. From hasty, indiscriminate arrests, to difficulty in obtaining bail, the process leading to the prolonged incarceration of under trials needs urgent attention," he said in his address. Justice Ramana also said- "We need a holistic plan of action, to increase the efficiency of the administration of criminal justice. Training and sensitization of the police and modernization of the prison system is one facet of improving the administration of criminal justice,". The Chief Justice’s comments may also be read in line of a recent call by the Supreme Court to the centre to consider framing a 'Bail Act' to streamline the early release of prisoners.

 

Such comments coming from the Chief himself, will have far reaching impact on all cases where the recent trend has changed from-“ bail not jail” to “ Send them to Jail!” In today’s fast paced, internet activated world, the social media has played a big role in disseminating information having a wide coverage across the globe. In the recent past, there have been many instances where multiple FIRs have been filed for the same or similar offence against an individual in order to make sure that he remains in jail and keeps running for justice. In April, 2020 an FIR was lodged against the owner-editor of Republic Bharat Channel for a broadcast. FIRs were then filed in Maharashtra, Rajasthan, Madhya Pradesh, Telangana, Jharkhand and in the UT of Jammu and Kashmir. The accused was then constrained to approach the Apex court to quash these FIRs. Then there was also the case of TV anchor, Amish Devgan, several FIRs were lodged against him in state of Rajasthan, Telangana, Maharashtra and Madhya Pradesh for hosting a program on 15th June, 2020. The first FIR was filed in Ajmer, Rajasthan. He approached the Supreme Court challenging the FIRs and alternatively praying to club these FIRs and transfer to Ajmer where the first FIR was filed.

 

The question that arises in the light of all these events is that can an individual be arrested several times for the same offence? As per the law, a person cannot be arrested or made to face trial for the same offence as it is barred under Article 20 (2) of the Indian Constitution. The Delhi High Court has also recently held that the Police cannot lodge five FIRs for same incident in a matter related to the offence of looting and arson during the Delhi riots in the year 2020. The High Courts of Telangana and Karnataka have also taken similar views that multiple FIRs on same incident is not permissible. 

 

The Apex court in various pronouncements has held that even though improved versions of the same incident cannot be a ground for second FIR but rival version of the same incident can be permitted. In a nut shell, it can be said that there is no sure shot mechanism to determine the issue of multiplicity of FIRs except by taking the matter to court, but considering the highly variant views that are being taken by the higher courts, the question still remains moot. In order to combat this problem, the Supreme Court has even asked the Central Government to propose solutions in order to tackle this problem of multiplicity and has suggested the establishment of a mechanism similar to the Judicial Panel on Multidistrict Litigation set up in the USA. This suggestion by the Apex Court sounds extremely positive and it seems like the judiciary is taking the problem of the quashing of the opposition by the government head on. Recently the comments made by the Chief justice show this stance adopted by the courts and are indicative of the direction where the wind is blowing- "Political opposition should not translate into hostility, which we have been sadly witnessing these days. These are not signs of a healthy democracy. There used to be mutual respect between the government and opposition. Unfortunately, space for opposition is diminishing," he said. The Chief further went on to say that- "Sadly, the country is witnessing a decline in the quality of legislative performance,” adding that laws are being passed without detailed deliberations and scrutiny.

 

This stance being taken by the Indian judiciary is highly supportive of the right of an individual to express his dissent. The Supreme Court’s vacation bench had recently agreed to hear a petition by TV anchor Rohit Ranjan against whom first information reports (‘FIRs’) have been filed for telecasting a misleading video against Indian National Congress leader Rahul Gandhi. The court went one step ahead and granted protection to the TV anchor on his counsel’s submissions that multiple FIRs for the same offence cannot be filed and that there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident.

 

All said and done, the stance taken by the Supreme Court shows that the voice of dissent will not be suppressed so easily and the winds of change will for now be allowed to roam freely in the democratic skies of this country.

 

Mahatma Gandhi’s words loom loud and clear for all of us to hear and follow-“ you may never know what results come of your actions, but if you do nothing, there will be no results.’

 

(The author is an Advocate on Record practising in the Supreme Court of India,   Delhi High Court and all District Courts and Tribunals in Delhi. She has done her Doctorate in Criminal Law and is the Legal Member in the Internal Complaints Committee of various private as well as Government Organizations. She is also an empanelled advocate of various government institutions. Email:swatijindalgarg@gmail.com) 

 

 

 

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