On Munnawar Faruqui, And Why Bail Not Jail Remains A Myth

Munnawar Faruqui was arrested by the Madhya Pradesh police for allegedly making obscene jokes about deities and politicians, in a case registered against him and some others which invoked offences such as Section 295-A IPC that are cognizable and non-bailable (more on that later). After some weeks, on 28th January the High Court of Madhya Pradesh dismissed what was a third bail application filed by Mr. Faruqui; the previous two having been filed before a Magistrate's court and that of an Additional Sessions Judge. As a result, he continues to remain in prison, and the law meekly requests all officials and society at large, that Mr. Faruqui must be presumed innocent until his guilt is established by way of trial.There has been extensive engagement with the plight of this individual as it arguably shows a unique level of high-handedness by officialdom if the version of events publicly reported is to be believed. The concern shown by the High Court for his personal liberty also attracted a scathing attack in the Hindu by Gautam Bhatia, comparing this individual's liberty with another where such concern was loftily expressed by the Supreme Court. All these engagements, in focusing on specific instances, have not trained their attention to the frankly rotten legal regime that judges are presiding over on bail matters. This small article tries to add this dimension to the ongoing conversation. Understanding the Twin Pillars of Bail LawThe foundations of bail law in India rest on twin pillars: First, the classification of offences, and second, the exercise of judicial discretion. Both are considered imperative to the way our system works and I want to try and convince you that, in fact, both are contributing substantially to the arbitrariness and unfairness that is rampant in the system today. ClassificationThe two most important classifications accompanying any offence in India are (i) whether it is cognizable or not, and (ii) whether it is bailable or non-bailable: If cognizable, then police are empowered to arrest without warrant and investigate without any magistrates' orders; if non-bailable, then an arrested person has no right to bail, and must file applications seeking bail before a judge [longer take here]. Here, our main focus is the second classification about bail. This classification of offences is a feature imported to India by the 1861 Criminal Procedure Code. It is seen as reflecting the different regimes prevailing under Common Law for bail at the time in respect of misdemeanours and felonies, where felonies were seen as more serious crimes where releasing persons on bail was left to judicial discretion. There is an obvious issue with this classification, and that is its antiquity. The system has not been revised since at least the year 1898 and this has meant that even the purported logic of offence-seriousness does not shine through the entire setup. This was something which the Supreme Court commented upon in passing in 1958. Re-classifying offences to better reflect the concerns of today's day and age might yield a different scheme which does not deny a right of bail as widely as is done currently. One could argue that the Supreme Court sponsored such an exercise very recently in Arnesh Kumar as well. If this exercise was done with a keen eye on prisons data, it could also help reduce the tremendous pressure that is placed upon prisons, where nearly 10% of all undertrial prisoners are persons accused of simple theft. In addition to which is the issue of rendering these classification justiciable so as to recover some measure of checks and balances in this exercise of offence-classification which is currently totally under executive control. As helpful as that might prove in the short run, I would argue that any such reclassification would only be treating the symptoms of the malaise, which is the idea of allowing questions of personal liberty to turn on the basis of a government sponsored classification. A brief background will help explain. Let us assume a person lost some property and went to the police station. Now, in most cases, what this person will bring to the police is a complaint, a narrative, a story about what harm was caused. It is police who transform this narrative into an offence known to law, register a formal accusation in the form of a First Information Report, and start investigation. Offences usually consist of a manifest conduct coupled with a specific state of mind. This renders the transformation of a narrative of criminality into a formal offence peculiar: one kind of manifest conduct (taking property) can amount to at least three different offences under the Indian Penal Code alone depending upon the kind of unseen mental element being alleged. Labelling offences differently depending on the kind of conduct and prescribing different punishments is, in theory, laudable, as it helps to achieve greater nuance and fairness in the administration of criminal...

On Munnawar Faruqui, And Why Bail Not Jail Remains A Myth

Abhinav Sekhri

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