It would be a mistake for those who were concerned about the ordeal that Aryan Khan was put through, to relax now that he has got bail. Yes, the so-called case against Aryan will probably go nowhere. As happened in the case of Rhea Chakraborty, one of the NCB’s other high-profile victims, there will be no coordinated follow up, given that the evidence is so weak.
But the case raises many serious issues which must be addressed if our legal system is to function in accordance with the spirit of the Indian Constitution.
The first of these issues and the one which has attracted the most comment is the unwillingness of the lower judiciary to grant bail. Aryan was eventually given bail by the High Court on the basis of exactly the same evidence that had been presented to two lower courts. So, why did the judges at the lower courts not recognise that this was a fit case for bail?
The short answer is that lower courts are notoriously reluctant to grant bail. They are often predisposed to take the side of the arresting authority and to keep people in jail even when there is little or no evidence.
This is not just my view. Ruling in the Arnab Goswami case, the Supreme Court lamented that lower courts refused to grant bail even when it was the right thing to do. In that judgement, Justice D Y Chandrachud said that many such cases should not have to reach the Supreme Court. Bail should have been granted much earlier.
The Supreme Court’s view was that it was wrong for a person to spend even a single extra day in jail. And yet, lower courts (and increasingly High Courts) think nothing of adjourning bail hearings or refusing to hear cases for months.
They must know, as the Supreme Court has reminded us again and again, that bail is the rule and jail is the exception. They must know also that various Supreme Court judges (including most famously Justice PN Bhagwati) have run campaigns to make courts give bail to persons (or ‘undertrials’) who needlessly spend months in jail without being convicted, only because the courts will either not hear their bail pleas or will refuse bail for no good reason.
So why do some judges happily trample over our Constitution and deny persons who have been convicted of no crime their right to liberty?
These reasons come to mind. It is because a) it is easier to deny bail rather than to look at the evidence and give people their liberty. Also b) many judges at lower courts often work closely with the same authorities that do the arresting and are therefore keener to keep these authorities happy than to worry about the Constitution. And finally c) it is because they don’t necessarily care what the Supreme Court says. They seem to have little respect for the pronouncements of the Court and may take the line that the worst that can happen is that their orders will be overturned. Nobody will ever hold them accountable for bad judgements that infringe on the right to liberty.
So far, at least, the Supreme Court has been content to remain a toothless tiger. It roars a lot but that’s about it.
I can’t believe that this Chief Justice is happy about this. At the very least, he should now issue guidelines for granting bail. And there is a need for greater coordination between the CJI and state Chief Justices so that abuses of our Constitution by the lower judiciary are curbed.
The judiciary is just one part of the problem. The agencies are another important part. As are the media. The agencies revel in the judiciary’s reluctance to grant bail.
They know that they can now lock up anyone without bothering to find evidence. Even an influential person will not get bail for nearly a month. A poor person will spend many months or years in jail without being convicted of any crime.
Judicial sleepiness is a Godsend to corrupt cops, to extortionists and to repressive governments at the state and National level. Anyone can be locked up for at least a month before the courts do the right thing.
There has always been a tendency for the media to faithfully parrot whatever the agencies tell them. Even 40 years ago, there was never a single Income Tax raid in which ‘huge recoveries’ were not made according to the next day’s papers. ‘Substantial quantities of black money’ were always discovered. And when these cases eventually fell flat, nobody bothered to report it.
But now, the nexus between the media and the agencies has become even nastier. Whereas in the old days, the papers were content to print whatever the agencies put into their press releases, there is now a back channel for the leakage of information; no press releases even need to be issued. It’s all done surreptitiously with the connivance of journalists.
Not only do the agencies smear their targets, the media happily reproduce these smears.
That the agencies are behaving disgracefully is no surprise. Nor should we be surprised that their political bosses do nothing to stop them— often both are working in tandem.
But what about the Courts? Shouldn’t judges penalise officers who, in a criminal case, selectively leak evidence to the media? And what of the Supreme Court? On the one hand, it takes a laudable and principled stand on the Pegasus issue. On the other, it allows agencies to ransack the mobile phones of citizens and to leak their private conversations.
Then, there is what we might call The Zanjeer Effect. Hindi cinema has taught us to admire the individual police officer who breaks ranks and tramples over procedure in his pursuit of the mighty and the venal.
This paradigm has been cheerfully embraced by the media and taken advantage of by several police officers. For instance, the media have lionised such figures as Delhi’s Special Cell officer Rajbir Singh and Mumbai’s encounter cops who bragged about how many people they had killed in cold blood.
Though many of these people were later revealed to be crooks, the media have not learned any lessons. Any rogue cop who is willing to cultivate journos is guaranteed favourable coverage.
The NCB’s Sameer Wankhede fits into this paradigm. Though he is a Revenue Service Officer and, strictly speaking, not a cop, he has been absurdly over praised for his efforts when he was posted at Mumbai Customs, to check Shahrukh Khan’s excess luggage or to detain young actresses returning from abroad while his staff combed through their luggage.
His shameful pursuit of Rhea Chakraborty also made him, bizarrely enough, a hero to a section of media. It is not for us to judge whether the many charges against Wankhede are valid or not. Perhaps he is not an extortionist.
Perhaps he did not win his place in the Revenue Service by using a fake caste certificate. Perhaps he was not really in league with the dodgy characters who seem to have been part of the NCB’s raid of the cruise ship.
The views in the article are personal of the author
But what is clear is a more general rule: this Zanjeer syndrome can mislead us. Every time any officer presents himself to the media as a tireless avenger for truth and justice, it is time to check how fat his wallet has now become.
Three important pillars of democracy have failed us. Of the three, the failures of the agencies will surprise us the least. But the other two need urgent repair. The Supreme Court must act to re-order the justice system. And the media must put our own houses in order. Far from being crusaders for truth we risk becoming enemies of Justice.