The cycle of criminal law reform initiated after Emergency has come full circle. After Emergency, the Supreme Court of India earned its spurs and started to be called the Supreme Court for Indians because it was espousing causes of disadvantaged groups, including prisoners and their rights. Justice Krishna Iyer, in one of his most quoted aphorisms, spoke of sending people to prison as punishment and not for punishment. There were judgments on the power of yoga, transcendental meditation and just ordinary education to divert people from the path of crime.
Prisoners were being reclaimed for life as students. Today with unrest brewing in several universities, both major and minor disruptions bring the police to campus, thus increasingly, social order was being restored by treating students as offenders. A recent example of this trend is the order granting bail to 27 students and two members of the Hyderabad Central University faculty by the 25th Metropolitan Magistrate at Miyapur, Hyderabad.
Liberty as Default Setting
The Constitution of India recognises all persons, and not just citizens, have a right to their liberty. This is the default setting provided by our Constitution. The government can change this setting only if Parliament makes a law allowing deprivation, by a procedure, which provides to persons who are robbed of their liberty, a fair chance to present their case. This reasoning requires adjudicators and administrators to privilege liberty over detention, whilst taking decisions on matters of arrest, bail etc. This reasoning informed a number of decisions pronounced by the Indian Supreme Court in the eighties.
Promoting Social Control
Displacing Liberty
With the onset of terrorism, the primacy that had been accorded to liberty after the Emergency started to change. Policymakers started to believe that the laws and procedures, which protected liberty could not be extended to terrorists and drug dealers or others whose conduct was categorised as especially offensive. Consequently, legislations which made arrests easy and bail difficult were enacted. These legislations required courts to hear the public prosecutor before granting bail. If public prosecutors opposed bail, then the courts needed to record special reasons if they overruled them.
Bail could be granted by imposing onerous conditions such as the accused being required to mark a daily, weekly or monthly presence in the local police station. This social control method of implementing criminal law was at first restricted to terrorism linked offences, the list has grown over the years.
The UOH Arrest Saga
The 25th Metropolitan Magistrate at Miyapur, Hyderabad was required to decide on March 24, 2016 whether the 27 students, two faculty members and one independent filmmaker should be granted bail. The students and faculty were arrested on March 22, 2016. After a lot of cloak-and-dagger machinations, they were produced before a Magistrate on March 23, 2016, who without raising any question on the legality of their arrest, sent them to judicial custody.
The case for bail came up after the arrested persons had already spent at least 24 hours in police and 24 hours in judicial custody. As per the FIR, the students were alleged to have committed ‘rioting’ ‘causing hurt by dangerous weapons or means’, ‘criminal intimidation’, ‘wrongful confinement’, ‘assault or criminal force to deter public servant from discharge of his duty’ and causing damage to public property. Without raising any question on the veracity of these allegations, it is important to note that these are only allegations. There is no provision in the Code of Criminal Procedure, unlike the laws dealing with drug dealers or terrorism, which requires that the public prosecutor be heard before the application of bail is to be decided.
The Magistrate was dealing with students not habitual offenders, and yet chose to hear the prosecutor before deciding on the bail. The prosecutor was not willing to make an immediate submission but asked for time. The acceptance of the application meant that the students and faculty spent three more days in custody. On March 28, the prosecutor asked for two adjournments and then came and stated that the bail was not being opposed as peace had been restored on campus. Since the prosecutor withdrew objection, the bail was granted, but the order came only by the end of the day on March 28. And the students were actually released from prison at 10 pm on March 29, after spending seven days in custody. Every day of detention is a deprivation of liberty and a constitutionally harmonious interpretation would require that the police and the judge should have agonised on each day of extended detention.
Instead what you find is a totally cavalier outlook towards the loss of liberty. The ease with which restriction is chosen over freedom can be seen from the fact that all the students, the faculty and the filmmaker have been granted bail on condition that they appear before the SHO, Gachibowli every Saturday between 10 am and 1 pm until the chargesheet is filed or 60 days whichever is earlier.
Regular Police Station Visits
Since the filing of a chargesheet is a serious affair, it could take more than 60 days, therefore it can be presumed that the Saturday mornings of these students and faculty stand blocked for the next two months. Reporting to the police will prevail over academic engagement. These are students who come from all parts of the country, but due to this condition they will be prevented from going home in the ensuing summer vacation. It bears repeating that these conditions have been imposed on students and faculty not habitual offenders. What could be the reason?
Punishing to Discipline
The most charitable explanation could be that both the judge and the university authorities wish to teach the students a lesson by confronting them with the real world. And such disciplining, it was evidently felt, could not be obtained by a symbolic arrest and a warning. It was necessary to provide the arrested persons the persona of habitual offenders to achieve that objective. Universities are learning spaces, and learning happens through exchange of ideas between discordant voices.
Protest and its rational and peaceful articulation is an important ingredient of that learning. It is true that protest without more, may not achieve much. However this is a truth that every protesting student or teacher has to learn for themselves. People can be silenced by force but dialogue requires persuasion. Using the police and the criminal justice system to enforce discipline is closing the door to dialogue and throwing a premium institution of the country into protracted discord. From a point where it was thought that offenders could be recovered with education to a point where students are being disciplined through criminal prosecutions we have come full circle. All this when it is widely known that the students are protesting because they are at odds with their vice-chancellor. Even if such opposition of the VC is disapproved, should the distinction between disciplining protest and prosecuting crime be destroyed. Is that how we wish to secure the future of the country?