The Guardians of Civil Liberty
THE CHECKS-AND-BALANCES DESIGN OF OUR CONSTITUTION REQUIRES THE JUDICIARY TO NOT GET COSY WITH THE EXECUTIVE
ON A HERITAGE WALK IN DELHI a while ago, I was with some friends waiting to get into Humayun’s Tomb. Among them was a woman journalist, and as we waited to enter this historical, world heritage monument in central Delhi, she turned to her college-going son to share a bit of personal history. Across the road from where we stood was the Nizamuddin police station. “Daddy was kept there, when he was arrested during the Emergency,” she said, pointing in the direction. Her husband, now a well-known politician, was at the time a student leader at the Jawaharlal Nehru University.
Talking later to young lawyers in my office, I narrated this motherand-son exchange. And tacked on a question: “Imagine I have been detained in similar circumstances, and you have filed a writ petition seeking bail in the Supreme Court, where I practise every day... name the judges who will definitely grant you a bail order?” You’ve probably guessed that the reply was not encouraging. The reason I narrate this office anecdote is that a number of lawyers are currently serving prison time without a trial, and the courts are seemingly unable to release them.
‘Bail, not jail’ is the ground rule for undertrials. Yet investigating agencies make needless, unjustifiable arrests as a matter of routine, emboldened perhaps by the knowledge that in practice, courts deny bail in most cases. Our courts deem it a privilege to be released on bail, and bestow it exceptionally, where the investigation is incomplete, upon the ones they possibly regard as the most deserving among those accused of a crime. Thus even lawyers of good standing have no assurance of their liberty, if a vengeful Executive, acting on political direction, is determined to detain.
Advocate Surendra Gadling of Nagpur has been in prison since June 2018, accused in the Bhima-Koregaon case, despite the fact that on New Year’s Day in 2018, he was nowhere near the spot of the violent incident. Advocate Sudha Bharadwaj, who renounced US citizenship and even turned down a high court judgeship to serve the cause of tribals and Adivasis, has been imprisoned in the same case since August 2018, though she wasn’t at the spot either.
In another unrelated case of alleged corruption, former finance and home minister and senior advocate P. Chidambaram has been in prison since early September 2019, through Diwali and beyond, despite the Supreme Court finally granting him bail in the case registered by the CBI. He continues to be in jail for another case registered by the Enforcement Directorate (ED), based on the same set of facts. The arrest in the ED case was timed to ensure that even if