Stan Swamy’s death shows India’s complex legal structure fails to protect individual liberty
The death of Father Stan Swamy is a black day for the Indian judiciary, which was unable to even grant a basic right such as bail to a senior citizen with ailing health and there is also a case to be made that he was entirely innocent of the bogus charges against him. This hapless moment in history is not merely an outcome of the judiciary’s degeneration in competence and conscience, but is also attributable to India’s complex legal structure, which does little to protect individual liberty.
John Stuart Mill, in his classic essay ‘On Liberty‘, argues that the struggle between liberty and authority is one of the most conspicuous features of history. An individual’s liberty, according to him, is almost absolute and “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others”.
He explains that the phrase “harm to others” is to be looked at through the lens of utility, which is not the will of majority, whose tyranny he warns against, but rather “utility in the largest sense, grounded on the permanent interests of a man as a progressive being”. Thus, he asserts, restrictions on liberty must always be for the largest good of society as a whole in the long run.
Criminal law is essentially a restraint on individual liberty, and the powers of arrest granted to the state enable it to instantly reduce free citizens to caged beings, leaving them at its mercy. Therefore, it is necessary that it is exercised with caution and utmost vigilance, to ensure that the freedoms guaranteed under Part III of the constitution are not unduly trampled upon.
However, recent times have witnessed a series of arbitrary arrests, such as those of the Bhima Koregaon activists, actor Rhea Chakraborty and CAA protestors inter alia. The purpose of these arrests has been to satiate the community’s desire for vengeance, gain political brownie points, suppress dissenters and instil fear in the citizens against the state machinery, rather than promote the larger good and progress of our society, serving as a pungent reminder that Mill’s paradigm of liberty remains evergreen.
This trend, which has been aided by the misapplication of laws such as sedition, false cases manufactured by state agencies against law-abiding citizens as alleged by the lawyers of the Bhima Koregaon accused, or using trumped-up charges by substituting IPC offences with stringent UAPA provisions, is worrisome. The Indian criminal justice system, in spite of following the maxim “innocent until proven guilty”, is not designed to protect individual liberty, and once a citizen is entrapped in its clutches, getting out is an arduous process, irrespective of the guilt of the accused.
Wide powers of arrest
For starters, section 41 of the Code of Criminal Procedure (CrPC) provides the police with extremely wide powers of arrest, wherein they can arrest without a warrant if they have a reasonable suspicion that a person has committed an offence punishable with over seven years imprisonment.
In cases where the punishment is seven years or less, the powers of arrest are constrained by section 41A of the CrPC, which mandates that a notice of appearance be given to the accused, and the Arnesh Kumar guidelines of the Supreme Court, which require the police officer making an arrest to give a detailed justification for the same.
In order to bypass these requirements for arrest, a practice of applying aggravated charges, which exist for almost all the offences in the Indian Penal Code (IPC), has emerged. Theft turns into dacoity while simple forgery of a document is transformed into forgery of a valuable security, which attracts imprisonment up to life. Provisions like criminal conspiracy and common intention are routinely invoked to link innocent persons and those guilty of lesser offences with habitual offenders and hardened criminals, thereby facilitating easy arrest without the requisite justification. Moreover, these charges are usually questioned by the court at the stage of filing of chargesheet, and not during the investigation, which allows persons to remain in extended custody for up to 60-90 days.
While Article 22 of the constitution protects an arrested person by requiring them to be produced before a magistrate within 24 hours, more often than not, magistrates fail to apply their mind while passing remand orders. Section 167 of the CrPC empowers the magistrate to remand the accused into police custody for up to 15 days and up to 90 days in judicial custody. For instance, the judge passing the remand order in Father Swamy’s case was legally required to question the need to keep an ailing senior citizen in custody for prima facie baseless charges and when investigation could easily proceed without arrest.
The Supreme Court has repeatedly noted, be it in Arnesh Kumar or in Manubhai Ratilal Patel, that remand requires judicial discretion and cannot be a mechanical process. For this reason, in consonance with the recommendations of the 37th Law Commission Report, section 167 was amended to exclude executive magistrates from the purview of granting remand, as it specifically required the judicial application of mind.
Despite this, custody is mechanically extended, and it is the norm to remand the accused from police custody to judicial custody, even when there is no need for the custody of the accused. For instance, the horrific deaths of Jayaraj and Bennix in Thoothukudi, Tamil Nadu last year, could have been prevented had the magistrate sought to apply his mind and release them, rather than remand them to further custody. Not once did he question whether the aggravated charges against the accused were justified and whether there was a genuine need for further custody.
Bail is a privilege
Justice Krishna Iyer in State of Rajasthan vs Balchand aptly stated that “the rule is bail, not jail”. Bail is a sacrosanct right as it guarantees that a person is not punished before they are proven guilty. Thus, it is one of the bastions of liberty in our criminal justice system.
However, courts are not inclined to grant bail under sections 437 and 439 of the CrPC during police custody, which has a 15-day upper limit under section 167, as they remain apprehensive of interfering with the investigation. This allows the police to get away with citing frivolous and far-fetched reasons to extend police custody and deny the accused their right to bail.
As per practice, bail applications are usually heard only when the accused is remanded to judicial custody. Here too, a myriad of issues arise. When judges don’t sit or don’t give dates, or public prosecutors unnecessarily delay their replies, an accused’s right to bail is automatically precluded. In politically sensitive cases, one notices a greater abdication of responsibility by the subordinate judiciary. They prefer their orders to be appealed against rather than being the ones to directly interfere in cases of mala fide exercise of power by the State.
The majority of under trials hail from underprivileged backgrounds and lack proficient legal representation, a sine qua non for bail. This is further complicated when special laws with aggravated punishments like the UAPA and MCOCA are routinely invoked for IPC offences, causing bail to become more elusive. Draconian provisions like section 43D(5) of the UAPA permit the judge to reject the bail if they believe the accused is prima facie guilty. All this has reduced bail to a privilege for the special few, rather than a right.
Complicated procedures which pay lip service to liberty, enable a system where custody is the norm. Around 70% of India’s prisoners are undertrials. With India refusing to ratify the Convention against Torture, approximately five persons dying in custody every day over the last decade and only 26 police officers being convicted in custodial deaths between 2001 to 2018, custody serves as a safe space for police excesses.
Recently, a youngster in Haryana died soon after he was released from custody. Before his death, he informed his family that he was physically tortured by the police and was silenced before the magistrate with the threat that his family would be next if he disclosed the truth. Jayaraj and Bennix, who probably could have survived with timely medical intervention, also succumbed to their wounds while they were in custody.
Liberty a farce?
All this indicates that India’s complex procedures and their slow implementation ensure that one need not be proven guilty to be punished. Rather than procedure being the handmaid of justice, it is itself punitive, striking at the heart of liberty. Justice Chandrachud’s ode to liberty in Arnab Goswami’s case, wherein he aptly states that “deprivation of liberty even for a single day is one day too many”, can bring tears to the eyes and hope in the heart, but to the common undertrial, these words remain a distant fantasy.
The recently constituted Committee for Reforms in Criminal Laws has a challenging mandate before it and would do well to address the vital question of liberty, particularly of the innocent, whose valuable time and freedom lost can never be recompensed. Until then, there will be martyrs like Father Stan Swamy, who was sacrificed at the altar of judicial abdication. However, his defiant spirit remains timeless. In the event of his unjust incarceration, he courageously retorted, “But we will still sing in chorus. A caged bird can still sing.” Let us never forget, it was not our judiciary, but death, that won him his freedom. South Asia Wire
‘Martyrs’ week being observed to pay homage to those who sacrificed their lives for freedom cause’
Islamabad: Kashmiris all over the world are observing Martyrs’ Week to pay homage to those who offered their lives in the way of freedom and to reiterate their pledge to continue martyrs’ mission till securing freedom from Indian bondage.
According to political observers and analyss the Martyrs’ Week is reminiscent of the utmost price being paid for freedom by resilient Kashmiris. It added the Kashmiris’ freedom movement is alive because of the blood of martyrs and the Kashmiri people will keep on treading the martyrs’ path till complete freedom from India.
Earlier, the All Parties Hurriyat Conference (APHC) thanked the people of Indian illegally occupied Jammu and Kashmir for observing shutdown on Burhan Wani’s martyrdom anniversary on July 8 (Thursday). In this regard, the political observers and analysts said that the strike is a clear message to India that it can’t subdue the Kashmiris’ passion for freedom by resorting to merciless killings in the occupied territory.
They deplored that Indian troops, as part of its killing spree, recently martyred seven Kashmiris in Pulwama, Kulgam and Rajouri districts of the territory. They said that 1425 Kashmiris have been martyred, 29656 injured in IIOJK since Burhan Wani’s martyrdom on July 8, 2016.
The political observers and analysts maintained, martyrs are the real assets of the Kashmiris’ freedom movement and that brave Kashmiris will never surrender before Indian military might. They said that the world rights organizations must take cognizance of gross human rights violations by Indian troops in the territory and the UN must intervene to stop genocide and custodial killings in Indian administered Kashmir.
They pointed out that the Kashmiris want settlement of the lingering Kashmir dispute in accordance with the UN Kashmir resolutions and aspirations of the Kashmiri people so that permanent peace could be established in the region. Web Desk
Indian youth are crying for employment, Dalits being harassed: Priyanka Gandhi
Lucknow. Congress General Secretary Priyanka Gandhi targeted the Yogi government by posting a Facebook post on the issue of unemployment along with Dalit atrocities in UP.
During this, Priyanka Gandhi wrote in her Facebook post that ‘There is news of UP Police attacking Dalit families in Palia village of Azamgarh, Raunapar. There many houses were demolished, hundreds were booked. This shows the anti-Dalit mentality of the government employees. Action should be taken against the culprits immediately and compensation should be given to the victims.
During this, Priyanka, while posting a Facebook post on the issue of unemployment in UP, wrote that ‘UP government is making youth cry for employment. Every tear coming out of the eyes of the youth will become inundated and will shatter the pride of this government.
On the other hand, when it comes to actually implement social justice, this government is not even ready to listen. The youth will take account of it. In the false advertisements of the BJP government, it is being said that lakhs of jobs will be distributed. Where were these jobs distributed? The youth are telling the reality of this false propaganda. Every day unemployed youth come through protests to seek employment from the UP government, but instead of listening to them, the government is bullying the police. News424plus.com
India waging hybrid war against Pakistan, Kashmiris’ movement
Islamabad: An analytical report says India has waged a hybrid war against Pakistan and Kashmiris’ movement for their right to self-determination. The report further stated that Jammu IAF Base like false flag operations are part of this hybrid warfare.
It said the sole objective of the Indian hybrid warfare is to destabilize Pakistan, as it mainly revolves around defamation of Pakistan globally and information terrorism against it.
The report says that EU Disinfo Lab run by New Delhi-based Srivastava Group was designed to discredit Pakistan by creating a negative impression about it in the world. Web Desk
Bill Gates and other philanthropists pledge $140m to cover UK foreign aid cut
London: High-profile global philanthropists, including Bill Gates, have pledged to provide almost $140 million to make up for losses created by the UK government’s cut to foreign aid.
The cut, which involves the country’s foreign aid budget falling from 0.7 percent of national income to 0.5 percent, is set to create a shortfall of almost $6 billion, leaving vulnerable countries such as Yemen, Syria, Lebanon, Libya and Somalia at risk of malnutrition, disease and medical crises.
The group of philanthropists, the Sunday Times reported, “did not want to see” medicines going to waste as a result of health projects being forced to close due to the cut.
It includes the Bill and Melinda Gates Foundation, the Children’s Investment Fund Foundation, the ELMA Foundation and the Open Society Foundations.
The organizations will target specific health projects and make up the shortfall in their funding.
Kate Hampton, CEO of the Children’s Investment Fund Foundation, said: “These life-saving treatments are cost-effective investments. If they go unfunded this year, British taxpayer generosity will be wasted as clinics are closed and essential drugs expire and are thrown away.”
Justin Welby, the archbishop of Canterbury, said he is still praying for the government to abandon the cut. “These diseases cause unimaginable suffering and entirely preventable deaths,” he added.
“This emergency funding is welcome and desperately needed, but I continue to pray for the restoration of our promise to those living in extreme poverty around the world, which was to love them as our neighbor through our commitment to the 0.7 percent aid spending target.”
Shadow International Development Secretary Preet Kaur Gill said philanthropists’ move to step in has “embarrassed the UK.”
She added: “This is a shameful moment for this Conservative government. As low-income countries continue to battle against the pandemic, this contribution to try and plug some of the gap left by the government’s slashing of life-saving paid programs is welcome, but it will only be able to prevent the very worst of the damage caused.
“The government’s decision to cut the aid budget, against the wishes of Parliament, has already cost lives, and they must reverse it or put it to a vote as soon as possible.”
Aid services warned last month that the UK cut had left 70,000 people without health services and 100,000 without water in Cox’s Bazar, Bangladesh, the world’s largest refugee settlement.
In April, following an 85 percent cut in its funding, the UN Population Fund said the missing money would have helped prevent about 250,000 child and maternal deaths and 14.6 million unintended pregnancies in some of the world’s most impoverished countries.
Chancellor Rishi Sunak has attributed the cut to high levels of public borrowing and growing national debt as a result of the coronavirus pandemic.
A spokesperson said: “The UK will spend billions to improve global health, fight poverty and tackle climate change this year — making us one of the biggest aid donors in the G7.
“We have always been clear that the government will return to spending 0.7 percent of national income on international development as soon as the fiscal situation allows.” Arab News
UN rights chief urges ‘reparations’ for slavery, systemic racism, colonialism
Geneva: UN High Commissioner for Human Rights Michelle Bachelet called nations to do more to address systemic racism, end impunity for police officers that violate human rights, and confront the legacies of colonialism and slavery.
Bachelet said that the murder of George Floyd “was a tipping point” and that nations could no longer ignore “the human rights violations routinely endured by African and people of African descent.”
Floyd’s murder prompted a debate by the UN Human Rights Council last summer surrounding racially inspired human rights violations, police brutality and violence against peaceful protesters. The debate resulted in resolution 43/1, which called for the creation of a report that was released in June of this year
The aforementioned report presents “an agenda towards transformative change for racial justice and equality” and “sets forth a comprehensive set of urgently needed measures” addressing the marginalization of people of African descent.
The report strongly encourages nations to reverse cultures of denial, end impunity for human rights violations by law enforcement, and ensure the voices of people of African descent are heard and their concerns acted upon, while ensuring accountability when confronting the nation’s past.
In her statements Monday, Bachelet asked states to “translate this agenda into action plans and concrete measure through national dialogues,” recommending nations “create, reinforce and fully fund comprehensive processes—with full participation of affected communities—to share the truth about what was done and the harms it continues to inflict.”
Bachelet’s statements echo the report, which acknowledges “false social constructions of race historically created to justify enslavement … [have] sustained and cultivated a tolerance for racial discrimination, inequality and violence.”www.jourist.org