IN a highly welcome step this week (May 18), the Supreme Court of India expressed serious reservations about various aspects of its earlier judgment in January refusing bail to former JNU student leader Umar Khalid and co-accused Sharjeel Imam. That verdict foreclosed their right to seek bail for a year. At the time of the rejection of his bail plea, Umar Khalid had already spent over five years in prison as an under-trial.
Beyond its immediate implications of raising hopes of justice for several under-trial prisoners, the self-correction by the learned judges raises hope for democracy, as the all-important capacities of democracies have been on the decline lately, even in mature democracies of the West (as also in India).
On May 18, a bench of Justices B V Nagarathna and Ujjal Bhuyan said bail was the rule also in cases relating to the UAPA or Unlawful Activities (Prevention) Act. This was stated in the context of a judgment allowing bail to a citizen from Jammu and Kashmir who had been incarcerated as an under-trial under the UAPA for five years.
Justice Bhuyan, who authored the judgment, said that the precept of bail being the rule and jail being the exception is a constitutional principle flowing from the fundamental rights to life, speedy trial and freedom from arbitrary arrests and detentions.
Justice Bhuyan said the basic principle that a person was presumed innocent until proven guilty was the ‘cornerstone’ of any civilised society governed by the rule of law.
The learned judge said, “Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge the accused on bail…The presence of statutory restrictions…per se does not oust the ability of the courts to grant bail…”
These highly welcome words have raised hopes that they would be followed by the granting of bail to many other under-trial prisoners who have been languishing in jails for a long time. In particular, there is reason to be very considerate towards those young men, who in a flash of excitement in their youth, may have indulged in some indiscretions but are otherwise known to be by and large law-abiding and peaceful. Some of them may also have a strong commitment to justice, and it is likely that, given a chance, they can make good contributions to society. In such cases, it may be a good idea to take their families into confidence, and if they take responsibility for their law-abiding conduct, then they can be freed on bail or even released completely.
Beyond opening the doors of justice for several such cases, these statements of the Supreme Court should be welcomed also in the wider context of being a significant departure from the recent trend of even mature democracies in the US, Europe, and India hesitating to take self-corrective measures. The courageous and compassionate step of the Supreme Court of India, with a very strong emphasis on the constitutional spirit of justice for all, should be an inspiration for others too, at home and abroad, and can help spread the message that timely self-correction is a reflection of courage and of commitment to justice and democracy.
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Bharat Dogra writes extensively on environment, development and welfare issues. The views expressed here are the writer’s own, and Clarion India does not necessarily subscribe to them. He can be reached at:bharatdogra1956@gmail.com
