1/ We live in very dangerous times, when those who speak truth to power are hounded and jailed, while those who are complicit in massive crimes are rewarded and promoted, electorally and politically.
2/ (Some who are complicit in creating this situation are bumped off when they become too inconvenient to the super powerful.)
The last bastion of hope in such times is the Supreme Court of India.
The last bastion of hope in such times is the Supreme Court of India.
3/ Time and again, in recent years, the Court has itself worked in ways to betray that trust. Rarely, though, it was by bending the rules of engagement. But even that has happened to protect particular judges.
4/ Now SC appears to have brought this malady into criminal jurisprudence, the mishandling of which will result in massive human rights abuses, and extend impunity to a monopolistic political and police system eagerly willing to play to the piper’s tune.
5/ JUSTICE S. MURALIDHAR and JUSTICE VINOD GOEL of Delhi High Court in ZAHOOR AHMAD SHAH WATALI Vs NATIONAL INVESTIGATION AGENCY, in their 13 Sep 2018 judgment held about the material produced by NIA to deny bail to the accused as follows:
6/ 73. “It must be noticed at this stage that the NIA does not dispute that the Appellant is a leading businessman in Kashmir. He runs a conglomerate of business entities and has been active in the context of the Indo-Pakistan trade.
7/ Nothing has been shown to this Court from the entire bunch of documents which would suggest that these trade activities were geared toward funding of terrorist activities, as alleged in the charge-sheet.”
8/ The judges then, on the basis of various Supreme Court and other High Court orders, proceeded to grant conditional bail to the accused. One judgment of the SC they cited is in Sanjay Chandra v CBI AIR 2012 SC 830, where the Court held:
9/ 80. “In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.
10/ Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon.
11/ The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.”
NIA appealed this decision. A SC Bench comprising Justice A.M.
NIA appealed this decision. A SC Bench comprising Justice A.M.
12/ Khanwilkar and Justice Ajay Rastogi overturned the Delhi HC order on 2nd April 2019 stating, thus denying bail. Importantly the Bench was of the “view” that the Delhi HC was wrong in relying on a massive body of earlier SC rulings to grant bail to the accused.
13/ This argument was articulated as follows:
14/ 35. “The High Court clearly overlooked the settled legal position that, at the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities.
15/ The Court is expected to apply its mind to ascertain whether the accusations against the accused are prima face true. Indeed, in the present case, we are not called upon to consider the prayer for cancellation of bail as such but to examine the correctness of the approach…
16/ …of the High Court in granting bail to the accused despite the materials and evidence indicating that accusations made against him are prima facie true.” Speaking about this SC ruling, Colin Gonsalves writes in the Indian Express:
17/ “In not a single decision of the Supreme Court is it laid down that documents inadmissible as evidence can be relied upon by courts to deny bail.
18/ This is a heretical proposition in criminal jurisprudence articulated thus “the question of discarding the document at this stage on the ground of being admissible in evidence is not permissible.
19/ The Court must look at the contents of the documents and take such documents into account as it is.” Therefore, according to the Supreme Court, bail can be denied by looking at police evidence that would not be admissible during the trial under criminal law.
20/ It is an understatement to say that this judgement undermines the purity of criminal jurisprudence. It deserves to be set aside by a larger bench.”
As @ColinGonsalves_ writes:
“Sudha Bharadwaj, professor of Law at the National Law University Delhi, a former member of the…
As @ColinGonsalves_ writes:
“Sudha Bharadwaj, professor of Law at the National Law University Delhi, a former member of the…
@ColinGonsalves_ 21/ …Chhattisgarh State Legal Services Authority and founder of the democratic rights organisation — Janhit — has been in jail for two years following the rejection of her bail application. The high court order followed a recent two-judge bench Supreme Court decision in Zahoor…
@ColinGonsalves_ 22/ …Watali’s case, where the Court held that bail under section 43D(5) of the Unlawful Activities Prevention Act (UAPA) can be denied by relying upon prosecution documents even though they would be inadmissible in evidence during the trial.
@ColinGonsalves_ 23/ Such a judgment is unprecedented and has draconian consequences.”
