On Monday, 11 July 2022, in a landmark judgement, the Supreme Court of India categorically stated that “democracy can never be a ‘police-state’”. The order is bound to have wide-ranging repercussions not only on the police force but on the entire law and order mechanism including the National Investigation Agency (NIA) which has done great disservice to the Constitution of India and to the cause of justice, in recent years.

The Apex Court also issued a set of guidelines on bail rules. The SC order says that investigating agencies should not arrest any accused unless absolutely necessary. In this regard, it has asked the Centre to enact new laws. Arbitrary arrests, the Court further stated, had exposed the colonial mentality of the entire system; as a result, the image of the country has taken a severe beating and is emerging as a ‘police state’.

Justice Sanjay Kisan Kaul and Justice M.M. Sundresh, who comprised the two-member bench, said that there was an urgent need to enact laws or rules on the bail process. They said that if an accused has applied for bail, a decision would have to be taken within two weeks; in the case of interim bail, that period should be six weeks. The Apex court also directed the States and Union Territories to abide by Sections 41 and 41A of the Criminal Code in arresting an accused.

The bench noted that the jails are flooded with under trial prisoners and the statistics indicate that more than two-thirds of the prison inmates constitute under trial prisoners. The Bench lamented, “of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less. They are not only poor and illiterate but also would include women.”

The bench further expressed its “hope” that the investigating agencies would keep in mind the law laid down in Arnesh Kumar’s case, discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. The Bench also unequivocally asserted that, “bail is the rule, and jail is the exception.” Further adding that “the person who sues has to prove that the accused is guilty. In that context, bail is normal. However, if an accused has to be sentenced, the police have to provide appropriate evidence. Only then will the court order the custody of the jail without walking in the normal way.”

In its far-reaching observations and directions to the Government and the entire law-and-order system, the Apex Court, among other things, said:

• The persons accused with the same offence shall never be treated differently. While observing that uniformity and certainty in the decisions of the court, the bench stated that accused with same offense shall never be treated differently either by the same or different courts. While emphasising the role of courts, the bench observed that the rate of conviction in criminal cases in India is abysmally low, which may be a factor that weighs on the mind of the court while deciding the bail applications in a negative sense. “Courts tend to think that the possibility of a conviction being nearer to rarity, bail applications will have to be decided strictly, contrary to legal principles.”

• The ultimate acquittal with continued custody is a case of grave injustice. The court further observed that one cannot mix up consideration of a bail application, which is not punitive in nature, with that of a possible adjudication by way of trial. On the contrary, an ultimate acquittal with continued custody would be a case of grave injustice.
• Imposing conditions impossible of compliance would defeat the very object of release. Referring to Section 440, which provides for the amount of bond and its reduction, the court observed that the amount of every bond is to be fixed with regard to the circumstances of the case and shall not be excessive. While emphasising that the conditions imposed shall not be mechanical and uniform in all cases, the bench observed that imposing a condition which is impossible of compliance would be defeating the very object of the release.
• Prolonged trial against an accused/convict under custody violative of Article 21. The Bench observed that whatever may be the nature of the offence, a prolonged trial, appeal or a revision against an accused or a convict under custody or incarceration, would be violative of Article 21. Referring to Section 309 of the Code, the bench observed that even after directions have been issued to not give unnecessary adjournments the non-compliance of Section 309 continues with gay abandon. According to the Court, while the courts will have to endeavour to complete at least the recording of the evidence of the private witnesses, they shall make sure that the accused does not suffer for the delay occasioned due to no fault of his own.
• The unexplained, avoidable prolonged delay in concluding trial would be factor for consideration of bail. According to the Court, while it is expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail. The Bench stated, “One must read this provision from the point of view of the dispensation of justice. After all, right to a fair and speedy trial is yet another facet of Article 21.”

A pathbreaking judgement on several counts. It calls for drastic and immediate reforms: police reforms, prison reforms, political reforms and for that matter even judicial reforms. At this stage, it is anyone’s guess if the Government has the transparency and the political will to ensure that what the order says is actually implemented at every level. If one goes by what is happening in the country today instead of protecting and promoting democracy the current regime is visibly fostering a police state.

One does not need too much of intelligence to realise that one lives in a ‘police state’. The police, in general, seem to have lost their sense of objectivity and impartiality. They just follow the ‘diktat’ of their political masters. They harass, intimidate, investigate, beat up and incarcerate and much more. At the receiving end are the poor and the marginalised, the minorities and other vulnerable communities, human rights defenders and all those who take a stand for truth, justice, the rights and freedoms guaranteed in the Constitution; false and fabricated cases are foisted on them. In most cases, there is not a shred of evidence provided; if and when something is provided, it is so blatantly concocted that even one of the die-hard supporters from the ‘other side’ would find it hard to believe.

That the police are by-and-large corrupt is stating the obvious. On the roads, one can plainly see how traffic offenders just get away by greasing the palms of the police; it is estimated that at busy junctions in some cities the daily income for each one of the traffic police from these bribes comes to several thousands of rupees. This, however, is just the tip of the iceberg. The bribes paid by hardened criminals to some top police officers is mind-boggling. Then, of course, one of the top ‘open secrets’ in the country is of the crores of rupees that senior police officers (including IPS officers) have apparently to pay to their political masters (particularly to those who run the ‘home department’) for plum and lucrative postings. In these postings they can easily recover their bribe money, through extortion, and making atrocious monetary demands even on poor tribals.

One can go on with the whole list of woes and highlight the pathetic levels to which the Indian police force has fallen to. The message on the walls is clear: police reforms are needed desperately for the good of the nation. Those in training must be provided with an upgraded formation which is respectful of human dignity, impartial to all and solidly professional. Besides, the police force has to delink totally from the political regime of the day. It just cannot be expected to toe the line and dance to the whims and fancies and unconstitutional tunes of fascists.

Political reforms are desperately needed too. The political shenanigans that took place in Maharashtra recently and the undercurrents in Goa are recent examples of why reforms in the political spectrum are urgent and necessary. Today elected representatives can be bought up and blackmailed by the ruling regime at the drop of a hat. Whilst every person has a right to change one’s ideology or political leanings – what we need to have in place is a moratorium that if a person is elected on the ticket of one party and if s/he is planning to join another party, then s/he should resign from the seat that one represents and only after three years should be allowed to stand for elections under the banner of another party. The whole political system today seems to have become criminalised, communalised and corrupt.

For more than twenty years now, the Association for Democratic Reforms (ADR) has been stressing on this dire need for political reforms and making every effort to address it. The mission statement of ADR says, “Our goal is to improve governance and strengthen democracy by continuous work in the area of Electoral and Political Reforms. The ambit and scope of work in this field is enormous. Hence, ADR has chosen to concentrate its efforts in the following areas pertaining to the political system of the country:

• Corruption and criminalization in the political process.
• Empowerment of the electorate through greater dissemination of information relating to the candidates and the parties, for a better and informed choice.
• Need for greater accountability of Political Parties.
• Need for inner-party democracy and transparency in party-functioning.”

The very fact that there are so many undertrials languishing in jails calls for an immediate reform of prisons. The prisons of India are overcrowded and dehumanising. Prisoners are denied their basic needs leave alone the regular opportunity to meet or talk with their near and dear ones. We have the classic case of late Fr Stan Swamy being denied a much-needed straw sipper. A few days ago, a special National Investigation Agency (NIA) court in Mumbai  denied to grant permission to use mosquito nets in prison to two Elgar Parishad accused -- lawyer and activist Gautam Navlakha and Kabir Kala Manch member Sagar Gorkhe. Most prisoners are denied basic amenities and the necessary health care! Then of course, the nation desperately needs reforms in the judiciary.

The recent judgement must also be seen in the context of some other high-profile cases like those of human rights defender Teesta Setalvad and former Director General of Police R.B. Sreekumar; and also, former IPS officer Sanjiv Bhatt (who is serving a life sentence in a custodial death case). The three are accused of alleged fabrication of evidence regarding the 2002 Gujarat riots case. The bail application (after 14 days of judicial custody) application was due for hearing on 15 July but it is now postponed to Monday 18 July since the public prosecutor had not filed his affidavit on time.

Then there is case of Alt News co-founder and fact-checker Mohammed Zubair, who has been bombarded with FIRs in the past few weeks. On 15 July he was granted bail in the case filed by the Delhi Police over a 2018 tweet, for which he was arrested last month; however, he will continue to stay in jail for two other cases filed in Uttar Pradesh. Zubair has requested the Supreme Court to cancel six cases filed against him by the Uttar Pradesh police and has also asked that the Special Investigation Team formed to investigate the cases to be called off. Just a few days ago an FIR was filed against the internationally renowned activist Medha Patkar.

Teesta, Sreekumar, Sanjiv, Zubair, Medha are just some of the great patriots India has today – who at great risk want that the democratic framework and all the values enshrined in it are protected and promoted. They and many others are paying the price for defending the Constitution and standing up for justice and truth. It is not without reason that the Supreme Court has said loud and clear that “Democracy can never be a Police State”. The situation is already very bad; however, it is still not late for enlightened citizens to wake up, (as the Sri Lankans have done recently), and to ensure that democracy survives and thrives in India. For this one need reforms immediately and urgently: police, judiciary, prison, political -- the whole spectrum and beginning now.

(Fr Cedric Prakash SJ is a human rights, reconciliation and peace activist/writer. Contact: cedricprakash@gmail.com )