I used to keep constantly fed up with fundamental jurisprudence of ‘effective legal representation’, and ‘free and fair trial’ to the accused. The law professors keep on feeding us the idea of how Courts are the solution for everything, how our judicial system act as a counter-majoritarian institution to protect our dissent voices and fundamental rights against the brutal and authoritarian State. There was an exception to this, one law professor, who asked us to critically review the patterns and behaviors of the Court to understand and acknowledge that judicial institutions often forget their constitutional duties and favors the State when their interest is at stake. The Supreme Court is supreme because it is the final Court of appeal, not because it is infallible. However, I still kept chanting my mantra, the Court will protect the marginalized and vulnerable groups, I believed that an effective legal representation could definitely protect the civil liberties of the individual.
I started to witness my mantras, breaking and destructing itself as the bail application of the wrongfully arrested from the Delhi pogrom was rejected one by one. It became a new example of how Courts bend the established legal jurisprudence when the interest of Government is at stake. I worked along with Lavkesh Bhambhani, Mahvish Shabab, Jihad Bin Basheer, and Thasnimul Hasan. I already knew, there would be two kinds of victims. 1) Survivors of the pogrom. 2) Innocent persons wrongfully arrested by the allegations of being a part of the ‘riot’. By default, both these groups by default will be denied equal and effective justice, in order to maintain the State narrative that Delhi pogrom is a communal riot, and not a planned and organized pogrom directed against the minorities. It was in this background; we took the case of Iliyas to ensure that he receives equal and effective legal representation in all stages of criminal proceedings ranging from bail to the end of the trial.
Iliyas is a butcher hailing from Bulandshahar, Uttar Pradesh, and used to work in a butcher shop in Indira Vihar until the Delhi pogrom. Without any doubt, Iliyas belongs to one of the most socially and economically marginalized community. Iliyas never had resources to hold a legal fight against mighty State and its resources. On 17 March 2020, he was arrested on the allegation that he indulged in destruction of the Rajadhani Public School situated in North East Delhi being a part of the ‘riot’.
According to the prosecution story, Iliyas was allegedly a member of the unlawful assembly that had participated in the destruction of the Rajadhani School, owned by Faisal Farooq, an educationalist in northeast Delhi. He was identified in the CCTV footage, which interestingly to the date have never been produced before the Court or chargesheet. We collaborated with Adv. Abdul Gaffar, who himself was fighting a number of pro bono cases, where police had arrested and detained a number of innocent people at the pretext of inciting and committing riot. The entire State narrative was the Anti-CAA protestors and Muslim victims were solely responsible for violence and destruction in northeast East Delhi. But soon, the nation-wide lockdown to contain COVID-19 broke all the chains of solidarity among the lawyers and access to the judicial process.
Long legal fight in the Court
Finally, on 16 May 2020, our bail application for Iliyas was accepted by the Court and he was subsequently ordered to be released under surety and personal bond. On the very next day, we secured a money bond and went to Mandali Court complex to secure his release from the Mandoli prison. I and Jihad Bin Basheer along with his brother-in-law were anxiously waiting for his release, when a police officer informed that, Iliyas is also formally arrested in another FIR, that means the bail does not matter until he gets the bail in this FIR also, and he can’t be released.
Now according to the second FIR, the prosecution alleges that Iliyas was allegedly a member of an unlawful assembly and committed riot along with Faisal Farooq in the destruction of the DRP School, northeast Delhi.
There was nothing stranger than the incoherence of the police version in a combination of two FIR, the prosecution now alleges that he initially attacked DRP school along with Faisal Farooq, then subsequently he went and attacked the Rajadhani school, which is owned by the Faisal Farooq. But we come to know that the present charge where Iliyas is included as accused is heavily contested by the State.
We moved a new bail application before the Court and argued that Ilyas satisfy all the factors of bail, especially the triple test, which is (a) Iliyas is not a Flight Risk (meaning that he will not abscond from the investigation) (2) Iliyas does not have any means to tamper the evidence (3) There is no criminal antecedent, also he is not financially and socially powerful to influence the witnesses.
But the Court on 11 June 2020 rejected our bail application citing that there is evidence against Iliyas mentioned in the chargesheet filed by the police. This order is in direct contravention of Supreme Court judgments in Masroor v. State of U.P,&Kanwar Singh Meena v. State of Rajasthan. In both judgments, the Supreme Court has categorically held that Court must not conduct a meticulous examination of evidence at a bail stage, because such examination may prejudice the rights of the accused. However, the judicial discipline is a long-gone cause, when the interests of the State are at stake.
We knew, since the State is actively contesting the bail application, there is no option left other than preparing arguments on rebutting evidence submitted by the prosecution. The burden of proof is nothing short of proving the innocence of Iliyas beyond a reasonable doubt. We started studying and analyzing the evidence against Iliyas. There are only two pieces of evidence against Iliyas. (1) Witness statement of a security guard of DRP school, who witnessed the destruction of school (2) CCTV footage.
The witness testimony of the security guard in its initial statements before the police or magistrate does not mention or identify Iliyas. More importantly, he has not mentioned that he could identify any accused indulged in the rioting. It was only on 17.04.2020 (two months after the incident took place), in his 5th witness statement he had identified Iliyas as a member of the unlawful assembly. Now the story becomes more interesting, he was identified from a photo shown by the police. As per the prosecution, the police took the snapshots of CCTV footage and shown to the prime witness security guard to identify Iliyas.
As per the law, (1) test identification parade has to be conducted in the presence of judicial or executive magistrate and (2) there must be a number of photos or persons placed along with accused to verify the credibility of the identification of the accused (3) there must not be an unexplained delay in conducting test identification parade, especially when the witness does not know the accused personally. In the case of Iliyas, none of the three factors are satisfied by the police. Therefore, this evidence is inadmissible, as there was no legally permissible judicial test identification parade conducted to identify Iliyas.
The prosecution story gets murkier as they have not even attached the CCTV footage as part of the chargesheet. On 9 July 2020, we passionately argued to discredit all the evidence against Iliyas with the hope to get bail. The Judge instead of allowing and bail application issued an order asking the Special Prosecutor to submit snapshots of CCTV footages in a sealed cover to verify whether it is Iliyas. The District Court’s act of asking evidence is a blatant violation of the right to a free and fair trial of the accused. The bail application has nothing to do with the guilt of the accused because the guilt of the accused shall be determined on the trial after a detailed examination of evidence. The purpose of the bail is to ensure that the liberty of the accused is not infringed during the pendency of police investigation. Therefore, it is a normal rule, unless prosecution shows facts and evidence indicating that the accused would interfere with investigation and threat to fair investigation, the accused is entitled to get a bail.
We were left with no other option, other than hopefully waiting that Judge might give a bail after due consideration of our extensive argument on discrediting inadmissible evidence. In any situation, the District Court should not reject bail application merely on the basis of uncorroborated and unverified CCTV footage. The case was listed on 15 July 2020.
On 15 July 2020, I woke up with a hope that Iliyas could finally get his freedom to wake away from the dark cells of Mandoli prison. We again reminded the Court that the basic bail jurisprudence is that‘Bail is the Rule and Jail is an Exception’, and the Court should not keep the accused in jail forever before the trial, that too on the basis of irrelevant considerations. The hearing started soon and for everyone’s surprise, the Assistant Commissioner of Delhi Police was present for the hearing. I was asking myself, why do a high ranking IPS office attend a bail hearing of Iliyas? Why is there such kind of political pressure against mere butcher from UP, who even belongs to most underprivileged sections of the society.? Is it to protect the State narrative that northeast Delhi violence is a communal riot rather than an organized and systematic anti-Muslim pogrom?
Finally, the Sessions Court of Karkoodoorma pronounced the order rejecting the bail application of Iliyas. Despite the fact, we went to the extent of arguing the innocence of Iliyas beyond reasonable doubt for bail, yet the Court refused to grant any relief. The Sessions Court successfully overturned the principle of bail and concluded that “Jail is the Rule, Bail is an Exception”, particularly when the State wants the individuals from the marginalized and vulnerable groups of Indian minorities behind the prisons, as long as the authoritarian State demands.
Many people may argue that the case of Iliyas might be an exception to the rule, however it is not whether the case fits in an exception or rule. But, we are witnessing a pattern of cases, wherein the Courts are failing to apply and uphold the fundamental principle of criminal jurisprudence, ‘accused is presumed to be innocent, until proven guilty’, especially, in cases, the State has specific interest to keep the person behind the prison without trial.
Legal Reality of Equal and Effective Legal Representation
‘Bail is the Rule and Jail is an Exception’is legal rhetoric that was heavily influenced from the judgment revered by Justice Krishna Iyer in the State of Rajasthan v. Balchand, In almost all bail application, this legal rhetoric is reinforced with the hope of defending the fundamental principle of criminal jurisprudence, which is ‘accused is presumed innocent until proven guilty’. But, the stark reality of legal practice made me realize that for marginalized and vulnerable communities in India, the bail jurisprudence has become ‘presumed guilty until proven innocent’. There is nothing to be shocked to witness that Muslims, Dalits and Tribal population comprises 55 percent of undertrials in India, although they account for only 39 percent in the total population. The death penalty report published by National Law University, Delhi also substantiates that 76% (279 prisoners) of prisoners sentenced to death in India are backward classes and religious minorities. It is not at all secret, that our criminal jurisprudence is fundamentally broken and requires radical reforms in compliance with human rights obligations.
But the State will intentionally refrain from any such reform because it does not want to usurp arbitrary powers that it holds in criminalizing individuals, who the State seems a threat to their political establishments with dissent voices.
The State has already started to dilute the ‘right of accused to be presumed innocent’ through the Unlawful Activities Prevention Act (UAPA) and other special acts in the garb of national security. Through these special laws, the State is able to place human rights defenders, journalists, student activists, and critics behind the prisons forever, without even a free and fair trial. On the other hand, there is an emerging pattern showing the Indian Courts diluting the jurisprudence of bail, thereby denying the accused right to bail.
When Iliyas bail got rejected again on 16 July 2020. It was disappointing, especially when you know the basic rights and jurisprudence, you were taught and were of fundamental values are slowly failing in our Courts. But I kept saying to me, ‘it’s a long struggle and the darker days shall brighten’. My mind was overwhelmingly occupied with the suffering and pain of human rights defenders and political prisoners ranging from Sudha Bharadwaj, Varavara Rao, Gautam Navlakha, Arun Ferreira, Vernon Gonsalves, Anand Teltumbde, Surendra Gadling, Rona Wilson, Sudhir Dhawale, Shoma Sen and Mahesh Raut. Further, the Anti-CAA activists Sharjeel Imam, Gulfisha Fatima, Khalid Saifi, Meeran Haider, Shifa-Ur-Rehman, Dr. Kafeel Khan, Asif Iqbal, Devangana Kalita and Natasha Narwal who are still languishing in Jail for their mere political opinions and strong dissident voices. If these are the names we know of, who can at least afford a legal battle, there are thousands of people like Iliyas, rotting in pre-trial detention, simply because they can’t afford equal and effective representation in the lower Court and unable to discharge the heavy burden of proving innocence ‘beyond reasonable doubt’ at a bail stage.
While we are planning the strategies on moving to the Delhi High Court to get bail for Iliyas, the phone rang, it was Iliyas brother in law. Iliyas’ mother has been anxiously waiting to know when would Iliyas get home. I can’t tell them about the bail jurisprudence and legal principles, all I can say to them is that the bail got rejected and Iliyas won’t be home. I don’t know what to say. But, I said to myself, it is a long struggle…. It is a long struggle.
Adhil Saifudheen a lawyer based in New Delhi.