A legal question

In India, the right to bail is enshrined in the legal framework as a fundamental principle of personal liberty. However, a curious paradox appears to exist when it comes to who benefits from this constitutional right and who does not. High-profile politicians facing serious allegations often walk free on bail within days, if not hours. On the other hand, political activists like Umar Khalid and Sharjeel Imam remain incarcerated for extended periods without being granted similar relief.

Bail is a provisional release of an accused individual while their trial is pending. The Indian Constitution grants everyone the right to liberty, and denying bail should be an exception rather than the norm. However, the discretion of the judiciary and the influence of politics can skew the application of this principle.

Indian legal scholar Upendra Baxi has written extensively about the discretionary powers of judges and their impact on the common citizen's right to bail. He asserts that in many cases, the decision to grant or deny bail reflects broader societal hierarchies. The judiciary, which is supposed to be independent, sometimes appears to act in alignment with political pressures and public sentiment. These discretionary powers are particularly evident in cases involving politicians versus those involving activists or dissidents, such as Umar Khalid and Sharjeel Imam.

India has witnessed several high-profile political cases where accused leaders have walked out on bail with remarkable speed. The most recent example is the case of former Bihar Chief Minister Lalu Prasad Yadav, who secured bail within months in a corruption case. Another example is the 2G spectrum scam, where A. Raja and other high-profile politicians were granted bail relatively soon despite being implicated in one of the biggest financial scandals in India's history.

In some instances, politicians facing serious criminal charges not only get quick bail but also continue their political careers unabated. A glaring example of this is the case of Karnataka politician G. Janardhana Reddy, who was accused of massive mining fraud. He secured bail and even resumed political activity, signalling that criminal charges, even serious ones, pose a little obstacle for many politicians.

In these cases, the ability to secure bail is often linked to several factors:

1. Legal Resources: Politicians have the means to hire the best legal minds in the country, who can craft effective strategies to secure bail quickly. Senior advocates such as Kapil Sibal, Harish Salve, and Mukul Rohatgi often appear in these cases, bringing their immense legal acumen to the defense.

2. Political Influence: Politicians, especially those who belong to ruling or influential parties, often benefit from a nexus of political and legal networks that expedite their cases. Former Supreme Court judge Markandey Katju has openly criticized the judiciary for being influenced by political power, raising questions about the impartiality of the system in cases involving politicians.

3. Public Perception: Politicians often manipulate public perception, portraying themselves as victims of political vendetta. This narrative can sway judicial decisions and lead to speedy bail. For instance, in the case of Jayalalithaa, her supporters staged massive protests, applying indirect pressure on the judiciary.

Contrary to the swift bail granted to politicians, political activists like Umar Khalid and Sharjeel Imam remain incarcerated for extended periods. Both were arrested in connection with the anti-CAA protests and have been charged under draconian laws such as the Unlawful Activities (Prevention) Act (UAPA), which severely limits the likelihood of bail.

Khalid was arrested in September 2020 under the UAPA for his alleged role in the Delhi riots, and Sharjeel Imam has been in jail since January 2020 on charges of sedition and incitement. Their bail pleas have been rejected multiple times. The key difference in these cases is the nature of the laws under which they were booked and the prevailing political environment.

The UAPA is an anti-terror law that makes it extremely difficult for an accused to secure bail. Under this law, the police are given extended periods to file chargesheets, and the onus is on the accused to prove their innocence even before the trial begins. This reverse burden of proof significantly lowers the chances of bail.

Legal experts like senior advocate Indira Jaising argue that the use of UAPA in cases like Khalid's and Imam's is often disproportionate and serves as a tool for stifling dissent. In a public interview, Jaising highlighted that under normal circumstances, courts prioritize the principle that "bail is the rule, jail is the exception." However, under laws like UAPA, this principle is inverted, making jail the rule and bail the exception.

Further compounding the problem is the political climate. Both Khalid and Imam were vocal critics of the Citizenship Amendment Act (CAA), which was widely seen as discriminatory against Muslims. Their continued incarceration, many legal scholars argue, is more a reflection of political vendetta than the merits of their cases. Human rights organizations, including Amnesty International, have consistently called for their release, citing concerns over misuse of anti-terror laws to silence dissent.

In cases involving politicians, the judiciary often exercises discretion to grant bail based on the accused's social standing, political clout, or even the public sentiment surrounding the case. However, in cases involving activists, especially those who challenge the government or its policies, the judiciary seems far more conservative. Lawyer and civil rights activist Prashant Bhushan has criticized this trend, stating that “courts often hesitate to grant bail in politically sensitive cases involving dissent, fearing public backlash or political repercussions.”

The anecdote of RJD leader Lalu Prasad Yadav, who secured bail on health grounds despite his long-standing conviction, stands in stark contrast to activists like Khalid, whose health concerns during the COVID-19 pandemic were largely ignored by the courts.

Another dimension to this disparity is the role of the media in shaping public opinion. When politicians are arrested, their cases receive wall-to-wall coverage, often portraying them as victims of political witch-hunts. On the other hand, the cases of activists like Khalid and Imam are often sidelined or framed in a manner that labels them as anti-national or threats to national security.

This media bias can subtly influence judicial decisions. Former Supreme Court judge, Justice Madan Lokur, in an article, pointed out how the media’s portrayal of activists has contributed to creating an atmosphere where their prolonged detention is normalized.

The contrasting fates of politicians and activists in the Indian legal system highlight a troubling duality. While the Constitution guarantees equality before the law, the reality is far different. Politicians, with their financial resources, political connections, and media backing, often secure bail without much difficulty, even in cases involving serious charges. On the other hand, activists, especially those challenging the government, face a legal system that is stacked against them, with draconian laws and a judiciary that often errs on the side of caution in politically sensitive cases.

The cases of Umar Khalid and Sharjeel Imam are stark reminders that in India, the right to bail is not applied uniformly. Until there is a shift in how laws like UAPA are applied and how dissent is treated by both the government and the judiciary, this dual system of justice is likely to persist.

Views expressed are personal