When prosecution supports accused

The cancellation of the bail granted to Union Minister of State for Home Ajay Mishra’s son Ashish Mishra in the Lakhimpur-Kheri violence case by the Supreme Court is a body blow to the Yogi Adityanath government. In asking the accused to surrender to the police in a week’s time, the three-member bench, headed by Chief Justice N.V. Ramana, has upheld the right of the victim to be heard at every stage of the case. The charge against him is that he mowed down farmers protesting against the three agricultural laws enacted by the Modi government under the wheels of his vehicle. The UP government, which usually takes credit for acting swiftly and decisively against criminals, took its own time to arrest him and that, too, only after the apex court intervened in the matter. The investigation, supervised by the apex court, found that the charges against him were indeed serious. Yet, when his bail application came up before the Allahabad High Court, the prosecution appeared to be lackadaisical in opposing it. And when the man, accused of many non-bailable offences, was released from jail, the state government did not deem fit to challenge the bail in the Supreme Court. Ultimately, it was the farmers, who lost their kith and kin under the wheels of his SUV, who went to the court and challenged the bail. One reason why the bail was set aside was because the High Court appeared to be in “a tearing hurry” to release Ashish Mishra and it did not even give a proper hearing to the victims. In criminal cases, it is the state which prosecutes the accused and meets all the costs right from the court of hearing to the last court of appeal, i.e., the Supreme Court. This is how it should be. Otherwise, the relatives of a poor man who was, for instance, murdered by a rich man would never get justice.

It is on this principle that the criminal justice system works all over the world. This, of course, presupposes that the state would be even-handed and would do everything possible to ensure that justice is done, even if the accused is as powerful as a Union Minister’s son. However, the attitude of the UP government was clear from the long time it took to arrest him. In sharp contrast was the alacrity with which journalist Siddique Kappan was arrested even before he could reach Hathras to report a gang-rape and murder that occurred there. In an ideal situation, the prosecution can be expected to pursue only the punishment of the accused. Alas, in the Lakhimpur-Kheri case, the state appeared to be on the side of the accused, who wanted to teach the farmers a lesson for protesting against the farm laws, which were eventually withdrawn.

Ordinarily, the victims should have left the matter to the prosecution to bring the accused to justice. They realised that to leave the matter to the government was to let the powerful have their way. That is why they knocked on the doors of the apex court. Luckily for them, the court answered their prayers. Far more important is the ruling that what the prosecution claims may not be what the victim claims and the latter has a right to be heard at all stages of the case. To quote Justice Surya Kant, who wrote the judgement, “Victims have unbridled participatory rights from the stage of investigation to the culmination of proceedings... Victims have been clearly denied an opportunity to be heard at the time of grant of bail to the accused." In the instant case, the farmers may not be individually rich but they represent a collective body which is capable of fighting the case till the end. The accused will soon be in jail but this does not mean that justice will finally be done in the case. The apex court has not ruled out the right of Ashish Mishra to apply for bail and for the Allahabad High Court to hear it within three months. In other words, his bail application will again come up before the High Court, which is duty-bound to hear in a proper and judicious manner. The farmers who lost their relatives will also have the right to oppose the bail on the grounds that he is so powerful that he can influence the witnesses and turn the table against the victims. Finally, it will be left to another high court judge to hear the application and decide the case. What is disconcerting in all this is the thought that a government, which is supposed to uphold the rule of law at all times, can be partisan, just because the accused is dear to the powers that be and he shares their political ideology.