Listen to this article:
With the rejection of Sharjeel Imam’s bail plea, another judicial order relating to 2019 protests against the Citizenship Amendment Act (CAA) has once again come into public discourse.
Although the order reflects the profound and refined knowledge of the law of the judge, at the same time, it also reflects how sharp minds commit blunders. The judge’s reliance on an idealist and philosophical quote by Swami Vivekananda and John Milton in a criminal matter is misplaced. The judge’s reference to Milton, a British poet, in the context of freedom ensured in Article 19 of the constitution of India goes against Milton’s very personality and real-life antecedents.
In effect, the judgment rests upon the subjective opinion of the learned judge, guided by an ideal philosophical thought. A court of law, while dealing with the criminal justice system, cannot subject youngsters to the confinement of jails to come to the terms with and think in an ideal manner as the judge thinks fit. In criminal proceedings, that too while exercising discretionary powers in bail jurisdictions, if the judges get themselves persuaded by their ideal philosophies, it will not only remain an error of the judge but it will also lead to a disaster on liberty of thought of an individual.
The order reflects that Imam is being prosecuted for the speech delivered on December 13, 2019 along with two speeches delivered on December 15, 2019 and January 16, 2020 covered in the other FIR bearing No. 22/2020, which are also filed under the provisions of UAPA (Unlawful Activities Prevention Act ).
Here lies a legal question as to whether such multiple prosecutions can be permitted when there is already a subsequent more stringent FIR covering the common speech of December 13, 2019?
After the T.T. Antony Case (2001) and the Tulsi Ram Prajapati Murder Case (2013) by the Supreme Court, this issue of multiple FIRs is settled, and the action of the police in prosecuting a citizen in multiple criminal trials for the same chain of events is unconstitutional and illegal.
Here the very genesis of this criminal proceeding is in relation to protest against one and common Citizenship Amendment Bill (now Act), 2019 and the series of speeches delivered by the accused. It is another thing that this issue of the legality of multiple FIRs was not the core subject matter for the judge to deal with in the judgment rejecting the bail, but it is a very crucial fact in the favour of the accused while exercising discretionary powers of a judge in bail jurisdictions.
The learned judge clearly records the fact that evidence in support of the allegations in relation to the speech dated December 13, 2019 is “scanty and sketchy”.
“Neither any eyewitnesses has been cited by the prosecution nor there is any other evidence on record to suggest that the co-accused got instigated and committed the alleged act of rioting etc. upon hearing the speech of the applicant/accused Sharjeel Imam,” the order said.
The learned judge has also held that the essential link between the speech dated December 13, 2019 and the subsequent act of others who may have committed rioting is conspicuously missing. To say it once again, the same speech is the subject matter of more stringent criminal proceedings under UAPA in another criminal proceeding where Imam is again a co-accused.
Finally, the judge also said that “once the legally impermissible foundation of imaginative thinking and disclosure statement of accused/co-accused is removed, the prosecution version on this count appears to be crumbling like a house of cards”.
However, despite these findings, it appears that the interpretations of philosophies, thoughts of leaders and poets have outweighed the settled principles on the basis of which bails are granted.
Now, the issue is as to why the bail has been denied?
Reliance on the prosecution’s version of the case
The public prosecutor appears to have argued that the speech of December 13, 2019 was on divisive lines and had the tendency to hamper social harmony. Obviously, it is a ‘subjective view’ of the police and the prosecution. The alleged offence is not in relation to people living in a utopian society where a person called Imam delivers a speech and destroys the very social fabric.
Undoubtedly, the issue of the Citizenship Amendment Bill (now Act), 2019 had created multiple dissenting voices from various different classes of society. Even the UNHCHR had termed the law as “fundamentally discriminatory in nature”.
A “particular community”, as referred to in the judgment, was kept out of the scope of the new law. Hence any speech to be given in protest against that law would have reference to that ‘particular community’. If the reference of ‘that particular community’ goes missing from the speech, probably the speech itself would be meaningless. Hence giving importance to the sole argument of the prosecution that the speech was on divisive lines and that it hampers social harmony is not worth consideration under these facts.
Especially where the learned judge himself does not appear to be convinced with the case set-up by the prosecution, then the “tone and tenor” of the speech cannot be the sole ground for rejection of bail in the cases of protests at such a large scale throughout the country.
The consequence of the judgment is that it gives the impression of the feeling of victimisation at the hands of selective targeting by the police. In these cases of determination of the legal right to personal liberty in criminal law, it is also necessary to make a contextual discussion of the term ‘social harmony’ which is essentially a sociological subject.
The sole reasoning of the judge about the apprehensions relating to social harmony, to reject the claim of a citizen against mighty police, must discuss the context of the alleged offensive speech rather than unrelated ideological philosophy of general discipline.
Here, I am not making any comment on the merits of the case in the other prosecution involving UAPA. However, the judgment rejecting the bail plea, in this case, reflects that the last word is of police despite the judge himself not being convinced about the case set up by them.
M.R. Shamshad is an Advocate-on-Record at the Supreme Court of India.