Travesty of justice
Quite recently, a plea by Gautam Navlakha — one of the BK-16 accused — seeking house arrest on the grounds of multiple ailments and ageing conditions, was denied. This is despite the fact that Navlakha cited the Supreme Court May judgement that found merit in treating house arrests as an alternative form of detention for undertrials. The situation automatically brings to us the shocking memory of Father Stan Swamy's demise under custody. The fact that 15 (after the death of Stan Swamy) Indian citizens have been under strict detention in jail without any trial calls for a critical look into the existing flaws of the criminal justice system in India. Going by proverbial terms, these 'innocent' people, without being proven 'guilty', are leading the life of culprits. What if the prolonged investigations in the Bhima Koregaon case fail to prove charges against the accused — because that is a possibility? Assessing this possibility becomes pertinent as India is not a stranger to wrongful detentions. Internationally, the United Nations enforced the International Covenant on Civil and Political Rights in 1976 — which India abstained from ratifying. More than four decades since then, we are still lagging behind ensuring any concrete framework in this direction. Though, the power to announce compensation to the victims of wrongful detention rests in the hands of the Supreme Court. The court has time and again granted compensation to such victims but has largely failed to set any criteria for the quantum of the same. Further, how can any amount of compensation be enough for a person languishing under jail for years and, in some cases, ending their lives in custody! This remains a brutal, regressive and cruel loophole in our criminal justice system. Drafting and enforcement of a legal framework becomes all the more important as the conviction rate, as per NCRB data, in Unlawful Activities (Prevention) Act, 1967 and sedition cases has touched a new low in the past few years. This need was aptly highlighted by the Law Commission In its 277th report 'Wrongful Prosecution (Miscarriage of Justice): Legal Remedies' in 2018. Apart from suggesting certain amendments in the Code of Criminal Procedure to enlist compensatory provisions, the commission had also proposed a standard mechanism to deal with such cases. The Parliament and the legislatures should give serious consideration to the recommendations and the objectives highlighted in the report. The victims of wrongful detention are most likely to undergo fundamental rights violations — to which the Supreme Court remains the prime guarantor. But the ever-increasing misuse of laws and provisions like UAPA, sedition etc. now need to be dealt with on a concrete legal basis, with clearly laid out balancing provisions and well-defined boundaries. The emphasis of current dispensation is leaned more towards strong policing over libertarian principles. In such a scenario, it is the non-executive wings plus the fourth pillar that need to be particularly alert in striking a perfect balance, thus, strengthening the democracy. A more important facet of the Bhima Koregaon case in particular is the caste lens. The case cannot be dissociated from the caste factor and it has to be looked into through the same lens. The history of Bhima Koregaon is rooted in caste. The Elgar Parishad was, to a significant extent, a manifestation of the collective expression of a particular cast. Also, the hostility against or by the Elgar Parishad cannot be dissociated from caste factor until proven otherwise. The least thing that could be expected from the state is an impartial approach towards handling the case in a speedy manner and, in case the state fails to ensure impartiality, checks and balances from legitimate factions must pour in. So far, the Elgar Parishad case has been a tale of two petitions — the first one ignored completely and the second pursued vigorously. It has been the case of death of an 'innocent' (as Stan Swamy was not proven guilty) and another fifteen 'innocents' languishing in jail — some of them in poor and ailing condition. It cannot be emphasised further that the 1967 UAPA law, in particular, needs to be either scrapped or toned down. Contrarily, the 'draconian' law has only been emboldened with successive amendments. The 2019 amendment offers a rather broad and vague ambit of terrorism under which the Central Government can designate an organisation or individual as terrorist. To be specific, the grounds include entities that: (i) commit or participate in acts of terrorism, (ii) prepare for terrorism, (iii) promote terrorism, or (iv) are otherwise involved in terrorism. Perhaps, this is the reason that professionals as diverse as professors, theatre artists, activists etc. could conveniently be charged under the Elgar Parishad case. This is still a high-profile case and is being publicly discussed. Consider the case of Nambi Narayanan — a former ISRO scientist — who was jailed under the wrongful pretext of the Official Secrets Act. These are not just odd instances, as many of the cases at the grassroots don't make headlines. The point to be made here is that these laws are leading to the mockery of the legal system and travesty of justice, also leading to huge social and administrative costs. Apart from weakening the components of democracy, with every prolonged wrongful detention, the society is kept bereft of the contributions that the particular individual(s) could have made. It further slows down the judicial processes that are already overburdened with unsolved cases amidst shortage of judges. It is a grave misutilisation of administrative resources and time. It is beyond understanding why such destructive practices are allowed to continue for so long, and for what and whose benefit? The prolongation of the process in the Elgar Parishad Case has brought before us the grave consequences of irrational loopholes in the criminal justice system. It is still just a tip of the iceberg. The case should serve as a tipping point for more sweeping changes that would ensure speedy and partial disposition of cases. Legal system should lead to punishment for culprits and not become a punishment in itself.