Is the Bombay High Court Saying a Hate Crime Isn't Heinous?

In a recent case, the judge ruled that the accused, charged with murder, deserved bail because they were provoked in the name of religion.

Two years ago, the killing of a Pune engineer, Mohsin Sheikh, by members of the Hindu Rashtra Sena shocked the nation. It seemed, on the face of it, a straightforward hate crime. Seventeen men were arrested for murder and conspiracy, along with the instigator, Dhananjay Desai. Some of them were granted bail earlier last year on the ground that there didn’t seem to be enough material to point to their involvement. Three other accused, whose involvement in the offence is less doubtful, have been granted bail for reasons that are fairly shocking.

Vijay Gambhire, Ranjeet Yadav and Ajay Lalge have been granted bail by a single judge of the Bombay high court on the basis of an outrageous ground. Lest I be accused of paraphrasing or misunderstanding, I’ve quoted the key passage from the high court’s judgment below:

 “The applicants/accused had no other motive such as any personal enmity against the innocent deceased Mohsin. The fault of the deceased was only that he belonged to another religion. I consider this factor in favour of the applicants/accused. Moreover, the applicants/accused have no criminal record and it appears in the name of the religion, they were provoked and have committed the murder.”

Any right-thinking person should recoil at these statements in general, even more so by a court that is using this as a basis to grant bail to the accused. Is the court condoning the hateful nature of this crime? Is the court suggesting that somehow Sheikh “provoked” the crime by being of a different religion? Or is it suggesting that being incited by someone else to commit a crime should be a ground for bail?

The court does not question the credibility or the basis for the material against the accused. Their involvement is not based on a confession or anything that should make us suspect some police perfidy. In fact, even the absence of any relation to the accused suggests that no false case is being made out against them or the legal system is being abused in their cases. The order does not dispute the correctness of the prosecution’s claim that there were eyewitnesses who identified them as the assailants. The court even records they were at the place when the offence took place!

The principles of what factors to take into account while granting bail have been well established and reiterated a few years ago by the Supreme Court in 2010 in Prasanta Kumar Sarkar vs Ashis Chatterjee. These include:

“(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger… of justice being thwarted by grant of bail.”

Where killing for “in the name of religion” and absence of “personal enmity” fit into these factors consideration is not obvious from the high court’s order. In the normal course of circumstances, all other things being equal, a heinous offence such as this should be less reason to grant bail. Here, the court seems to suggest that there’s nothing very heinous about a hate crime such as this.

To be fair, the conditions that have been imposed while granting bail are fairly stringent and, if adhered to, should ensure that the accused do not interfere with the investigation or the trial. They have also been externed from the area and directed not to associate with any activities of the Hindu Rashtra Sena. Should they fail to abide by these conditions, the court can cancel the bail.

The point, though, is not the details of the conditions of bail. Had the court genuinely felt that they were not going to be a threat to the investigation and trial, recorded cogent reasons for the same and imposed conditions to ensure sanctity of trial, there would have been nothing objectionable. Despite recent assaults on the principle, innocence is still presumed and bail is still the rule prior to conviction.

What galls is the “reason” provided in giving this order. At best, it may be a case of poor articulation on the part of the judge and at worst, an accidental reveal of prejudice. Such an order can make one doubt the neutrality and impartiality of the courts. More so, when we see the converse happening all the time: innocent Muslim men languishing for long years in jail on trumped-up offences and false charges. They are routinely and repeatedly denied bail in spite of the failure of the police to find cogent evidence against them or complete investigation on time.

Orders such as these, whether they’re born out of incompetence, callousness or ignorance, make us question the ability of courts to deal with hate crimes in accordance with the law. There is still time for the judicial system to correct this terrible error and one hopes, for the sake of the institution’s credibility, it does so.

Alok Prasanna Kumar is an advocate based in Bengaluru and was a Senior Resident Fellow at the Vidhi Centre for Legal Policy.