By Dr. P.S. Sahni
“The petitioner Prof.
S.A.R. Geelani has moved for bail setting out special grounds in support of the
prayer. The State opposes on various grounds. Briefly the facts pertinent to
the present petition and prayer will be stated. Right at the beginning it may
be mentioned that, at an earlier stage, his application for bail was rejected
on 19 February, 2016. But an order refusing an application for bail does not
necessarily preclude another, on a later occasion, giving more materials,
further developments and different considerations. While one surely must set
store by this circumstance, one cannot accede to the faint plea that one is
barred from second consideration at a later stage. An interim direction is not
a conclusive adjudication, and updated reconsideration is not over turning an
earlier negation. The petitioner’s lawyer has brought certain significant factors
which frown upon continuance of incarceration and favour provisional perhaps
conditional, release of the applicant.
The petitioner was arrested
under Sections 124A (sedition), 120B (criminal conspiracy), 149 (unlawful
assembly) of the Indian Penal Code (IPC) on 16 February, 2016. The Delhi Police’s
version is that at a public meeting on 10 February, 2016 organized by Prof.
Geelani at the Press Club of India, New Delhi – a stone’s throw from the
Parliament House – anti-national slogans were shouted. The police took suo motu cognizance of the clips of a
private T.V. news channel. Prof. Geelani has denied shouting any such slogan. There
were other prominent people present at the said gathering and the alleged
slogan shouting did not lead to any kind of violence. The police had earlier
told the court that during the event on February 10th, banners were
placed showing Afzal Guru and Maqbool Bhat as martyrs.
Our justice system, even in
grave cases, suffers from slow motion syndrome which is lethal to “fair trial”,
whatever the ultimate decision. Speedy justice is a component of social justice
since the community, as a whole, is concerned in the criminal being condignly
and finally punished within a reasonable time and the innocent being absolved
from the inordinate ordeal of criminal proceedings. This is by the way,
although it is important that judicial business management by engineering, not
tinkering, so as to produce efficient expedition, is in urgent, high-priority
item on the agenda of court reform, to be undertaken none too soon.
Back to the necessary
facts. On the Court denying bail on 19 February, 2016 the petitioner was
interned in New Delhi’s Tihar jail. He has come again for bail exercising his
statutory right. The present petition, as earlier stated, is the second one for
bail, the first having been rejected. True, Prof. SAR Geelani was sought to be
incriminated by the Delhi Police and Union Ministry of Home Affairs in the 2001
Indian Parliament attack case but was cleared of all charges by the Delhi High
Court in 2003 and the acquittal was upheld by the Supreme Court of India in 2005.
During the initial trial period he was incarcerated in jail from December 2001
to October 2003. After his acquittal by the High Court of Delhi and before this
acquittal was upheld by the Supreme Court, he was a free man; there is nothing
on state record to show that he indulged in any criminal activity. Since 2005
i.e. after being acquitted by the Supreme Court there has been nothing in the
conduct of the petitioner suggestive of disturbing the peace, threatening
anyone or thwarting the course of justice. Nay more. In the year 2005 Prof.
Geelani himself was shot at the doorstep of his lawyer Nandita Haksar and
grievously injured. Till date those who were involved in this shoot out have
not been arrested. Even so, Geelani himself has never been compensated for his
incarceration during December 2001 to October 2003. Not withstanding all this,
Prof. Geelani continued with his academic duties at Delhi University and also
championed the cause of human rights campaigning for release of political
prisoners in a legal, peaceful and democratic way. Even a passionate plea for
right to self-determination – so very close to Prof. Geelani’s heart – is
within the framework of the principles/protocols enunciated by the United
Nations. Prof. Geelani is a family man with both his children pursuing law
studies.
Against this backdrop of
social and individual facts the court must consider the motion for bail. The
correct legal approach has been clouded in the past by focus on the ferocity of
the crime to the neglect of the real purposes of bail or jail and indifferent
to many other sensitive and sensible circumstances which deserve judicial notice.
The whole issue, going by decisional material and legal literature has been
relegated to a twilight zone of the criminal justice system. Courts have often
acted intuitively or reacted traditionally, so much the fate of applicants for
bail at the High Court level and in the Supreme Court, has largely hinged on
the hunch of the bench as an expression of ‘judicial discretion’. A scientific
treatment is the desideratum.
The Code is cryptic on this
topic and the court prefers to be tacit, be the order custodial or not. And
yet, the issue is one of liberty, justice, public safety and burden on the public
treasury, all of which insists that a developed jurisprudence of bail is
integral to a socially sensitized judicial process. Personal liberty, deprived
when bail is refused, is too precious a value of our constitutional system
recognised under Art. 21 that the crucial power to negate it is a great trust
exercisable, not casually but judicially, with lively concern for the cost to
the individual and the community. To glamorise impressionistic orders as
discretionary may, on occasions, make a litigative gamble, decisive of a
fundamental right. After all, personal liberty of an accused or convict is
fundamental, suffering lawful eclipse only in terms of procedure established by
‘law’. The last four words of Art. 21 are the life of that human right.
The doctrine of Police
Power, constitutionally validates punitive processes for the maintenance of
public order, security of the State, national integrity and the interest of the
public generally. Even so, having regard to the solemn issue involved,
deprivation of personal freedom, ephemeral or enduring, must be founded on the
most serious considerations relevant to the welfare objectives of society
specified in the Constitution.
What, then, is ‘judicial
discretion’ in this bail context? In the elegant words of Benjamin Cardozo:
“The judge, even when he is free, is still not wholly free. He is
not to innovate at pleasure. He is not a knight-errant roaming at will in
pursuit of his own ideal of beauty or of goodness. He is to draw his
inspiration from consecrated principles. He is not to yield to spasmodic
sentiment, to vague and unregulated benevolence. He is to exercise a discretion
informed by tradition, methodized by analogy, disciplined by system, and subordinated
to ‘the primordial necessity of order in the social life’. Wide enough in all conscience
is the field of discretion that remains.”
Even so it is useful to notice the tart terms of Lord
Camdon that
“the discretion of a judge is the law of tyrants: it
is always unknown, it is different in different men; it is casual, and depends upon
constitution, temper and passion. In the best it is oftentimes caprice; in the
worst, it is every vice folly and passion to which human nature is liable. . .
. "
Some jurists have regarded
the term ‘judicial discretion’ as a misnomer. Nevertheless, the vesting of discretion
is the unspoken but inescapable silent command of our judicial system, and
those who exercise it will remember that:
“discretion, when
applied to a court of justice, means sound discretion guided by law. It must be
governed by rule, not by humor; it must not be arbitrary, vague and fanciful,
but legal and regular.”
“An appeal, to a
judge’s discretion is an appeal to his judicial conscience. The discretion must
be exercised, not in opposition to, but in accordance with, established
principles of law.”
Having grasped the core
concept of judicial discretion and the constitutional perspective in which the Court
must operate public policy by a restraint on liberty, we have to proceed to see
what are the relevant criteria for grant or refusal of bail. What is often
forgotten, and therefore warrants reminder, is the object to keep a person in
judicial custody pending trial or disposal of an appeal. Lord Russel, C.J. said:
“I observe that in
this case bail was refused for the prisoner. It cannot be too strongly impressed
on the, magistracy of the country that bail is not to be withheld as a punishment,
but that the requirements as to bail are merely to secure the attendance of the
prisoner at trial.”
This theme was developed by
Lord Russel of Killowen C. J., when he charged the grand jury at Salisbury
Assizes, 1899:
“....it was the duty
of magistrates to admit accused persons to bail, wherever practicable, unless
there were strong grounds for supposing that such persons would not appear to
take their trial. It was not the poorer classes who did not appear, for their
circumstances were such as to tie them to the place where they carried on their
work. They had not the golden wings with which to fly from justice.”
In the last fifteen years
Prof. Geelani has appeared before the police and the court whenever required,
never fleeing the country! In fact those who attacked him in 2005 have
disappeared!!
In Archbold it is stated that:
The proper test of
whether bail should be granted or refused is whether it is probable that the
defendant will appear to take his trial…
The test should be
applied by reference to the following considerations:
(1) The nature of the accusation…
(2) The nature of the evidence
in support of the accusation…
(3) The severity of the punishment
which conviction will entail....
(4) Whether the
sureties are independent, or indemnified by the accused person...
Perhaps, this is an overly
simplistic statement and one must remember the constitutional focus in Arts. 21
and 19 before following diffuse observations and practices in the English system.
Even in England there is a growing awareness that the working of the bail
system requires a second look from the point of view of correct legal criteria
and sound principles, as has been pointed out by Dr. Bottomley.
Let us have a glance around
which other relevant factors must revolve. When the case is finally disposed of
and a person is sentenced to incarceration, things stand on a different
footing. We are concerned with the penultimate stage and the principal rule to
guide release on bail should be to secure the presence of the applicant who
seeks to be liberated, to take judgement and serve sentence in the event of the
court punishing him with imprisonment.
It is not only traditional
but rational, in this context, to enquire into the antecedents of a man who is applying
for bail to find whether he has a bad record – particularly a record which suggests
that he is likely to commit serious offences while on bail. In regard to
habituals it is part of criminological history that a thoughtless bail order
has enabled the bailee to exploit the opportunity to inflict further crimes on
the members of society. Far from it, Prof. Geelani himself was shot at in 2005
just before being cleared by the Supreme Court of his alleged involvement in
the 2001 attack on Indian Parliament.
We must weigh the contrary
factors to answer the test of reasonableness, subject to the need for securing
the presence of the bail applicant. It makes sense to assume that a man on bail
has a better chance to prepare or present his case than one remanded in
custody. And if public justice is to be promoted, mechanical detention should be
demoted. In the United States, which has a constitutional perspective close to
ours, the function of bail is limited; ‘community roots’ of the applicant are
stressed and, after the Vera Foundation’s Manhattan Bail Project, monetary suretyship
is losing ground. The considerable public expense in keeping in custody where
no danger of disappearance or disturbance can arise, is not a negligible consideration.
Equally important is the deplorable condition, verging on the inhuman, of our
sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration
makes refusal of bail unreasonable and a policy favouring release justly
sensible.
Having regard to this
constellation of considerations, carefully viewed in the jurisprudential
setting above silhouetted, we are of the view, that subject to certain safeguards,
the petitioner Prof. S.A.R. Geelani is eligible to be released on bail.”
[Extensive and exclusive
quotes are from the case Babu Singh and
others v. The State of Uttar Pradesh, AIR 1978 SC 527
Bench: Justice V.R. Krishna
Iyer and Justice D.A. Desai
The facts pertaining to
Prof. Geelani’s recent arrest have been culled out from media reports.]
(Dr. P.S. Sahni,
Orthopaedic Surgeon is a member of PIL Watch Group.
Email: pilwatchgroup@gmail.com)
