DC Edit | Why Is Jail, Not Bail, The Order?

The judges of the Supreme Court often criticise those in the lower judiciary on public platforms about the latter declining bail to undertrial prisoners for one reason or the other and offer their pontifications about the right to bail, but while on the bench will pronounce judgments that almost pre-close the options of the very same judges in trial courts. And then there are judges and magistrates who go after apex court verdicts which give them an excuse to keep people behind bars forever. Between them they display legal insensitivity of the worst kind, disregard for human rights and total neglect of constitutional positions on individuals’ freedom.

A Delhi court has again rejected the bail applications of student activists Umar Khalid and Sharjeel Imam in a case linked to the 2020 Delhi riots as it had “little option but to follow the Supreme Court order on January 5” which quite inappropriately commented on the merits of the case while declining bail. “Following the said order of the Supreme Court, this court cannot entertain the applications and grant bail to the applicants. In fact, the applications are not maintainable and they are hereby dismissed,” the court said. In the judge’s opinion, there is “no substantial change of circumstances”.

A two-member bench of the Supreme Court had recently expressed “serious reservations” on the narrow reading of a judgment of a larger, three-member bench which held that prolonged incarceration without trial warrants constitutional intervention. The bench had pointed to situations where statutory conditions for bail will “melt down” if there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.

Mr Khalid and Mr Islam have been in jail for nearly six years with no end to their trial or incarceration in sight while judges scramble for reasons to keep them in jail. While Article 21 of the Constitution talks of “procedure established by law” before stripping someone of their right to life and personal liberty, some courts make the procedure the punishment. This is an affront to the spirit of the Constitution and hence must end.