A prick of conscience?

Judiciary must do more than express concern over loss of liberty

Alok Tiwari

Supreme Court judges questioning the judgment of peers is rare. They doing so through a written verdict as opposed to mere observation during proceedings is rarer still. One such occasion came earlier this week when a bench consisting of Justices B V Nagarathna and Ujjal Bhuyan raised serious questions about another verdict of a division bench that denied bail to JNU student and activist Umar Khalid and Sharjeel Imam, both accused in Delhi riots case. The bench was concerned that the Umar judgment had seriously diluted the spirit of an earlier three-judge bench that had held that bail should be granted in cases of prolonged incarceration where trial has been delayed and where there is no likelihood of it being completed in a reasonable time.

This judgment had offered a ray of hope to numerous accused who have been rotting in Indian jails with the state dragging its feet on their trial. The best known of these cases concerns Khalid and Imam. In January, two other judges Aravind Kumar and N V Aanjaria, while granting bail to five accused in same case had denied it to Khalid and Imam saying their alleged participation in riots stood at a higher level. More disturbingly, the judges also barred them from seeking bail for a full year.

The two activists are in jail for over five years on charges of inciting and organizing riots in Delhi. Delhi police are citing a large number of witnesses that need to be interviewed before they can bring the case to trial. Civil liberty advocates believe it is simply because of the penchant of the present government to harass political opponent, especially if they are Muslims. They cite reluctance of the police to act against many senior BJP and Hindutva organization leaders who were caught on videos inciting people during the same riots.

Nobody knows what prompted justices Nagarathna and Bhuyan to question the propriety of fellow judges on record. It could be the prick of conscience at continuing jail to two young persons against whom the Delhi police seem to be in no hurry to start the trial. It could be their concern at courts neglecting to assert their authority to protect civil liberties of the people. It could be to offer the jailed activists an opportunity to appeal against one year bar on them to seek bail.

Whether such an appeal is made, much less succeeds is not clear. What is clear though is that courts are increasingly loath to stand for people’s rights and against the state. This is particularly true in lower judiciary and in cases involving political interest of those in government. It has been seen in case after case, whether the Bhima Koregaon case of Maharashtra or money laundering cases against political opponents like Hemant Soren and Arvind Kejriwal, arrest of Sonam Wangchuk, the conviction of Rahul Gandhi for defamation. Despite the SC having time and again asserted that bail is the norm and jail exception, lower courts routinely reject bail applications forcing the accused to approach higher judiciary. The tendency is now seen in higher courts as well and, as the latest observation of SC bench underlines, has reached the very apex of the judiciary. It is almost as if the judges do not wish to get into the bad books of powers that be.

This has coincided with the increased tendency of the government to use everything from law enforcement agencies to tax departments to go after political opponents. Now agencies such as CBI and ED predictably launch raids and cases against opposition leaders in states where elections are due. Cases are also launched against activists fighting for rights of local tribes and others to control natural resources. These cases are launched under stringent laws such as NSA, UAPA, or PMLA. These laws not only allow arrest of accused on flimsiest of grounds but also enable prolonged custody without the agency having to prove anything in a court of law.

Person with financial means or those with backing of their political parties and others can approach highest courts to seek bail. Many others remain in custody until they fall in line with rulers or are deemed no longer an irritation to them. There are also people like Stan Swamy who passed away as an accused in the jail. This is totally contrary to the spirit of democracy where liberty of people is fundamental and should be non-negotiable. This goes on because of presence of a large number of laws on the statute book that have turned the basic principle of assumption of innocence on its head. These laws now require that an accused essentially prove their innocence in the court to even get bail. There is no concomitant responsibility on the state to prove their guilt for continued incarceration.

Now that at least one bench of the apex court has noted this tendency and expressed its concern at other bench becoming silent accessories to this erosion of liberty, it might be an opportune time for the court to take up the issue in a holistic manner. If it can set up a 9-judge bench to deliberate upon state’s right to control religious practices, it can do the same to examine state’s power to abridge fundamental rights to life and liberty. Surely these rights stand at higher footing than religious practices.

Over the years, the court has already established that right to life and personal liberty is part of the basic structure of the Constitution. This means Parliament cannot abridge them even through a constitutional amendment. How are then they getting eroded through simple laws? We are not talking a few days or weeks but taking away years of a person’s life without establishing their guilt. Nothing can justify this. There needs to be a hard deadline within which trial must commence and get over failing which the right to bail must be absolute.

This column appeared in Lokmat Times on May 21, 2026