Arrests on Flimsy Grounds and Denying Bail Tantamount to Harassment!

  • Over the last couple of years, it is consistently reiterated by concerned stakeholders, especially civil society activists, about the imperativeness of granting bail for the arrested accused on grounds that may not be construed as a serious offense. Agreed, any issues directly affecting the nation’s security and sovereignty definitely demand incarceration.  However, there are increasing incidents of arrests undertaken by law enforcement agencies on flimsy grounds which may not be sustainable in the eyes of the law.  Did somebody mention the Right to Free Speech Constitutionally guaranteed by the law?

PC: Prateek Singh

  • Of course, the Constitution mandates the Right to Free Speech but is increasingly under threat courtesy of precipitative actions of late by the zealous law enforcement agencies acting at the behest of the political masters who don’t take criticism in the right manner. As you are aware, the Supreme Court has consistently exhorted all stakeholders to ensure the maxim bail, not jail is upheld in letter and spirit.  Unfortunately, what is happening on the ground is quite contrary as none of the authorities seem to follow the diktat of the Apex Court in the right spirit.  The whole country is aware of how arrests are being made by the police on flimsy grounds in the pretext of disturbing the peace and tranquility of society.
  • Take the case of Mohammed Zubair, the fact-checker, who has been incarcerated ostensibly for disturbing the peace. While freeing Zubair, the Supreme Court said the power to arrest must be used sparingly.  Now, this has been repeated umpteen times by SC, but to little effect.  It does no harm to repeat that all courts must grant immediate bail in most minor offenses and especially those related to free speech unless there’s a clear indication that speech was intended to lead to violence.  Note that most free speech cases lose substance the moment the accused is granted bail as the police lose interest in probing flimsy cases.

PC: Medical Dialogues

  • The pre-trial arrest and long jail times are in effect the punishment. Needless to mention, only courts can put a stop to this by making the police realize that bail will be automatic.  Thus, granting of 7-day and 14-day custody, as in Zubair’s and many similar cases, must stop forthwith.  SC’s position on this issue should be the default position of all courts.  But magistrate courts don’t seem to get the message across.  As SC said earlier, India needs a bail law that codifies these practices and removes judicial discretion.  In the case of Zubair, UP police tried an old trick by filing multiple FIRs so that bail in one case isn’t enough to ensure freedom.
  • SC did well to anticipate various scenarios in the case. Besides ordering disbanding of the UP SIT probing the six FIRs and transferring to the Special Cell will make him entitled to bail in them as well.  Also, SC’s other observations, in this case, are crucial.  Responding to the UP government counsel who asked Zubair to be told not to post offensive tweets, the court pointed out that a journalist cannot be asked not to tweet, rather if any tweet violates a law then legal action can follow.  Hopefully, the same message will percolate down to the police and lower court for similar actions as well.