Thankfully, the humans can now talk of freedom after the abolition of slavery. Now, only the state is left with the right (?) of putting a person behind bars, of course, through a criminal justice process: the process in which a hi-fi criminal gets bail, the investigators fail to get evidence and the prosecution thus files the case; or, in a process, in which a poor accused is kept behind bars for 10 years waiting for the trial to start for a crime in which the maximum punishment is 2 years.
However, the bigger problem arises when one realizes that the judiciary is just an adjunct of the state. A judge is an employee of the state made responsible to keep a check on the excesses of the state. But, what if a Judge ends up promoting the interest of the state under an ideological bias; he wrongly convicts a person, puts him behind bars, and also denies him bail. Is the rebuke from an appellate court (which, btw, rarely happens) enough? What about the precious time the person loses in jail waiting for his appeal and/or the bail application to be decided in the superior court? What is the compensation for that? Shouldn’t the Judge who made a blunder while acting under a bias also be put in jail? He is guilty of wrongfully confining a person!
But, unfortunately, no one dare demand such a thing in practice because then he would be put in jail instead under the contempt law (for demanding justice). So, any state which boasts itself to be a democratic state just can’t have that portion of the law of criminal contempt of court as has been defined under section 2(c)(i) of The Contempt of Courts Act, 1971, because it is directly against the Right to Freedom from Wrongful Confinement of a person. And, also, there can’t be any immunity to anybody performing a public duty, whether be it a magistrate, a police officer, an army officer or a minister: The Right to Freedom from Wrongful Confinement can only be gained by ensuring punishment for those who wrongfully confine people.
If any person thinks that the state has wrongfully confined him or is about to wrongfully confine him, the person has every right to be seditious. So, there can’t be any law of sedition either in a democratic state because it takes away people’s Right to Freedom from Wrongful Confinement.
(I think the Kedarnath judgment is wrong. Incitement of violence can be punished under other laws, it has no relevance with sedition. Just because Gandhi Ji had a view point doesn’t mean it should become the law of the land. The Supreme Court of India is guilty of ideological bias in this case; it should have struck down Sec 124A IPC.)
Last but not the least, there just can’t be any non-bailable offenses in a democracy. The Right to Freedom from Wrongful Confinement is concomitant with the right to get bail unless finally convicted. The lethargy of the legal system in conducting trials, of the prosecution in presenting witnesses, of the investigators in collecting evidence, and of the police in policing can’t be compensated by putting a person behind bars. Rather, if a person accused of grievous offense jumps bail, the police station in charge of the place of residence of the accused should be put behind bars instead. Instead of wasting their time in surveying innocent people under their paranoid tendencies, the police should survey those who have been granted bail. I wonder how can anybody even digest a scheme in which a person can be put behind bars just on the basis of a complaint. It’s ridiculous and demonic!
I wonder if there is any country in the world which can at least ensure the freedom from wrongful confinement leave aside the freedom from infringement of privacy, the freedom of speech, the freedom of employment, the freedom of association, the freedom of religion, etc. DEFINITELY NOT INDIA.
©2010 Ankur Mutreja