Bail orders: Setting standards

The last two days have seen the tale of two bails linking the lives of a 22-year-old girl and an 82-year-old man both of whom were considered by the country’s law enforcement agencies as threats to the state. While the contention that they challenged the strength of the state is very questionable, there is no question that their bail has strengthened the rule of law in the country. The judges who granted them had different reasons for setting them free. But the thread running through them is the acceptance of the right of an individual to be protected against wanton and arbitrary acts of vengeance by the state. The country has recently been turning into a territory unsafe for fundamental rights and common democratic freedoms. The bail orders from Mumbai and Delhi would give us the right to and chance for a hope on this.

The Delhi sessions court order in the case of Disha Ravi, who was picked up by the Delhi Police from Bengaluru and made to spend days in jail on the most serious charge in the penal book but with the flimsiest of evidence, is a resounding affirmation of the rights of the citizen against the might of the state. It demolished every ground for the arrest and jailing of the activist and made some key observations which should guide the actions of the executive and even decisions of all courts. These should be plain in a democracy: “A government cannot jail citizens for disagreeing with it. The offence of sedition cannot be invoked to minister to the wounded vanity of governments. Freedom of speech also includes the right to seek global audience. Mere engagement with persons of dubious credentials is not a crime. Creation of a WhatsApp group or being editor of an innocuous toolkit is not an offence.” All these are derived from the tenets of the Constitution, rulings of the Supreme Court and the best conventions and practices of democracy. That is also an assertion of lawfulness, fairness and equity which are cardinal to the system of justice.

The Bombay High Court’s decision to grant conditional bail to Varavara Rao, an accused in the Elgar Parishad case, is also welcome, though it is belated and constrained by stringent conditions. An important aspect of the order is the acceptance of the right to health as a ground for bail. The court does not seem to have questioned the grounds of arrest and incarceration of the ailing poet as the Delhi court did in the case of Nisha Ravi. But the two bail orders have set standards which will hopefully be followed in many similar cases that exist now and will come up in future.