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Brij Bhushan vs Others - Should Liberty Be Contingent on Resourcefulness?

The law is expected to regard others the exact same way that it does Brij Bhushan Singh.

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In a short, perfectly well-reasoned order, a Delhi court on Tuesday, 18 July, granted interim bail to BJP MP and former WFI chief Brij Bhushan Sharan Singh. This pertains to the sexual harassment case filed against Singh, amid protests and pleas by professional wrestlers.

Simply, Rouse Avenue Court’s ACMM Harjeet Singh Jaspal pointed out:

  • The offences alleged against Singh are punishable by not more than 7 years

  • The accused persons (Singh and co-accused Vinod Tomar) have undertaken to remain present before the court whenever called

  • They are ready and willing to furnish bail, as well as comply with every condition of bail

“In these circumstances, this court is bound to follow the mandate of the Hon'ble Apex Court in Satender Kumar Antil vs CBI…” the court noted.

Hence, the court granted interim bail to Singh, which will be applicable until it arrives at a decision on his regular bail plea, and it did so in accordance with the Satender Kumar Antil judgment.

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WHAT DOES THE SATENDER KUMAR JUDGMENT SAY?

In this landmark judgment from July 2022, the apex court had said:

“(After filling of chargesheet, in case of offences punishable by less than seven years) bail applications…on appearance may be decided without the accused being taken in physical custody or by granting interim bail (to the accused) till the bail application is decided.”

More pertinently, however, the top court appears to have encapsulated the entire essence of the judgment in the following sentences:

“We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made.”

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BUT HOW OFTEN IS THIS JUDGMENT REALLY FOLLOWED?

Ten months after this judgment was passed, the apex court expressed dismay at reports of the district judiciary not complying with their directions.

“Counsels have produced before us a bunch of orders passed in breach of the judgment…It is not as if these judgments have not been brought to the notice of the trial courts and in fact have even been noted, yet orders are being passed which have a dual ramification i.e., sending people to custody where they are not required to…and creating further litigation by requiring the aggrieved parties to move further.”

As per Hindustan Times, one such case that the apex court was intimated about was that of a cancer patient who was denied anticipatory bail by a UP court (which was handling anti-corruption cases). 

In yet another order from 26 April, a sessions judge in Lucknow rejected the anticipatory bail pleas of several accused in a matrimonial dispute, even when they had not been arrested throughout the investigation.

On being informed about the same, the apex court reportedly asked for the judge concerned to be sent to judicial academy for “upgradation of his skill.”

But this isn’t a problem of two judges, two courts or even two cities. Courts across the country have often been seen to drag their heels when it comes to matters of personal liberty. 

On Wednesday, the apex court granted regular bail to activist Teesta Setalvad in an alleged fabrication of evidence case. In doing so, the top court noted that the Gujarat High Court’s findings in an order denying her bail were “totally contradictory” and “totally perverse.”

However, this order came for Setalvad only after several rounds of court proceedings at various levels. She also spent 70 days in jail in connection with this case last year.

The law is expected to regard others the exact same way that it does Brij Bhushan Singh.

Teesta Setalvad walking out of jail after 70 days in custody.

(Photo: PTI)

And it was only a late-night Supreme Court hearing that saved her from getting locked-up again on Gujarat High Court’s directions earlier this month. While the Gujarat High Court had ordered her immediate surrender, the Supreme Court had asked: 'Will skies fall if interim protection is granted for one week?'

It becomes pertinent to reiterate here that Brij Bhushan Singh, despite the sexual harassment allegations by multiple women wrestlers and all the protests demanding his arrest, hasn’t had to spend a single day in jail so far in connection with this case. And he need not, given all the reasons discussed above. (ICYMI: Offence punishable by less than seven years, chargesheet has been filed etc)

But as pointed out by Advocate Harshit Anand:

“Such cherrypicking, possibly on the basis the resourcefulness of the alleged perpetrator and which side of the political spectrum they fall on, violates the mandate of equality before law under Article 14."
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THE INTERSECTION OF ARTICLES 14 AND 21

Article 14 is a fundamental right guaranteed to all by the Constitution of India.

Article 21 is yet another fundamental right, and it guarantees “protection of life and personal liberty” to all. 

Read together, the import is that everyone in this country is equally entitled to personal liberty, except when it is taken away through procedure established by law. And the application of the law may vary from case to case, but it is constitutionally impermissible, for it to change face, transmute and don different garbs.

The law is expected to regard others the exact same way that it does Brij Bhushan.

And why is this important?

Because our jails are crumbling with dismal infrastructure and bursting beyond capacity, 391 prisons have occupancy above 150%, 77% of India's prison-population is under-trial (with the number of under-trials doubling between 2010 and 2021), and in the words of the present Chief Justice of India:

“Deprivation of liberty even for a single day is one day too many.”

(With inputs from Hindustan Times, Livelaw and India Justice Report (IJR) 2022.)

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