The COVID pandemic has delayed judicial proceedings on one end. On the other end, it poses serious health risks for those kept in overcrowded jails. Thereby, the pandemic has become a double-edged sword for those awaiting trials.
Bail as the rule
The general principle of law is that bail is the norm and jail is the exception. However, the Courts have rejected numerous bail petitions. Another common phenomenon, especially in the pandemic times, has been that of the bail pleadings being postponed.
A prime example of this phenomenon is the case of doctor Kafeel Khan. The Allahabad High Court on 27th July 2020 deferred a hearing for Kafeel Khan for the 12th time in five months. Khan had been in Mathura jail since 29th January 2020. He was arrested for a speech he delivered at Uttar Pradesh’s Aligarh Muslim University. The Court granted him bail on 10th February, but he was not allowed to leave. On 13th February, the UP government levelled the National Security Act,1980 against him. Khan had earlier in 2018 spent several months in jail about an oxygen shortage crisis. He was later absolved of all charges through a government report.
Another critical case is that of Varavar Rao, where health concerns arose due to the pandemic. The 79-year-old Telugu poet was arrested over his alleged involvement in the Bhima Koregaon case. Rao had filed for an interim bail citing his frail health and susceptibility to COVID-19 in March. However, a special NIA Court rejected the plea, and the Court rejected it again for the second time in June. Rao tested positive for COVID-19 on 16th July.
Anti CAA protestors
The pandemic has seen an alarming rise in arrests of political prisoners. The United Nations (UN) in June urged India to release anti CAA activists.
A statement released by the UN experts read, “Authorities should immediately release all human rights defenders who are currently being held in pre-trial detention without sufficient evidence, based on speeches they made criticising the discriminatory nature of the CAA.”
The statement mentions explicitly 11 individuals, including Meeran Haider, Gulfisha Fatima, Safoora Zargar, Asif Iqbal Tanha, Devangana Kalita, Natasha Narwal, Khalid Saifi, Shifa Ur Rehman, Dr Kafeel Khan, Sharjeel Imam and Akhil Gogoi. Prisoners like Akhil Gogoi and Sharjeel Imam are still in jail despite testing positive for the coronavirus.
The NIA on 28th July arrested Hany Babu, an Associate Professor of Delhi University. The arrest was in connection with the Elgar Parishad case in Mumbai.
Eleven other accused – Sudha Bharadwaj, Shoma Sen, Surendra Gadling, Mahesh Raut, Arun Ferreira, Sudhir Dhawale, Rona Wilson, Vernon Gonsalves, Varavara Rao, Anand Teltumbde and Gautam Navlakha were arrested earlier in the same case, and all are in jail now. The NIA took over the case from the Maharashtra Police in January 2020.
Remedies for undertrials
The Indian law provides for various protections for undertrials. Maneka Gandhi v Union of India established that access to speedy justice is a fundamental right. Hussainara Khatoon v. State of Bihar states that the State has the responsibility of establishing a process that ensures speedy justice. It said that financial constraints to set up infrastructure cannot be an excuse.
The Supreme Court in March observed that social distancing was difficult in prisons. There were 1339 prisons with approximately 4,66,084 inmates. The Court stated that the National Crime Records Bureau showed the occupancy rate of Indian prisons at 117.6%. As per NCRB data, more than half of prisoners in India are undertrials.
The Supreme Court asked the State Governments to consider giving parole to those facing up to seven-year jail term. This was an attempt at decongesting prisons on account of the COVID-19 outbreak. This makes the nature of crimes that prisoners are accused of, the primary factor for determining bail. Thereby, it provides no relief to political prisoners who are accused of grave crimes based on little to no evidence.
Impact of UAPA and NSA
Arrests of Anti CAA protestors and about the Bhima Koregaon case were under serious allegations. These arrests under the UAPA and NSA strip individuals of their usual defences against judicial delays. Law experts state that most of these arrests are based on flimsy evidence. Historical data shows that the conviction rates under these statues are very low. At the end of 2018, of the 2,008 cases under UAPA, only 317 were sent to trial. The draconian nature of these statutes allows them to be used as a tool to curb dissent.
Role of Courts
The statutes under which political prisoners are arrested leave them upto the mercy of courts. It must see that the leeway provided to the executive is not excessively applied. The bail application cannot depend merely on the nature of crimes they are accused of. The Courts need to take note of health factors and the evidence against a person. Furthermore, the Courts must recognise their duty in protecting the liberty of these citizens.
Granting bail is an essential remedy for undertrials. The Courts need to observe every bail application on its merits. It is upto the Courts to ensure that arrests under UAPA and NSA are not merely used as a means to threaten those opposing the government. The Courts must also treat bail applications on a priority basis. Every deferred hearing costs an individual more weeks or even months of being deprived of freedom.
The Courts should not allow the pandemic to be misused as a tool by the government or the accused. A balance between social order and an individual’s rights must be struck. Bail applications need to be viewed with careful consideration to ensure justice. Judicial delays must not cost a person his or her right to freedom.
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