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No bail, no trial and no presumption of innocence is no justice

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By MAINUL HOSEIN
16th-Apr-2017       
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I am surprised to find ourselves tolerating all wrongs and injustices and still we call ourselves a nation of heroes. The United Nations and the Amnesty International have been expressing anxieties again and again for disappearances and extra-judicial killings. But the government is unperturbed. For the government, the business is as usual. But for the people, it is panic for the safety and security of life and negation of the justice system.

Still the people have no other way but to seek justice from the court. The government has to explain every such disappearance and every such extra-judicial killing to make civilised life possible.

Criminal cases are multiplying and creating logjam in disposing of the cases. The problem of logjam will not be solved unless we know the cause of accumulation of criminal cases. In our view blaming the courts for not speedily disposing the pending cases is only the half truth.

The peculiar method of executing justice in our country is a great encouragement for those who can abuse the system to diminish the justice system itself. To initiate criminal cases arrest is easy at night or day. Even in British colonial days police would not arrest anybody at night. Nobody is sure, however innocent, of the protection of law and his rights that he has any protection against being picked up and find himself shut up from the outside.

The common perception is: The courts are helpless before the   awesome police power. The fight against terrorism or corruption must not mean fight against our rights or against the truth. Punishing the wrong persons is not a fight against terrorism or corruption.

It is understandable that even under the best of system, an innocent person can become a victim of a false case. But he is not frightened to death about his fate. He has the belief that police must have made a mistake. He is sure of the fairness of the justice system and he knows that there will be no pressure on the court to take FIR as proof of the offence alleged.

As an accused his prayer for bail will not be refused for extra-judicial consideration or he will not easily be sent to police custody for interrogation without the presence of his lawyer. In short, he is not shorned of his fundamental rights or the presumption of his innocence till found guilty after the trial.

The most difficult problem faced by our justice system is the fact that police cannot be trusted for their independence. The police are under full control of the government. Our police are not police for the people like they should be in a functional democracy.

In our system if the allegation is serious like corruption or terrorism then praying for bail by his lawyer is considered creating obstruction to the fight against terrorism and corruption. What is not considered is if he is an innocent.

It is more or less true in respect of other criminal cases also that an FIR filed by police means imprisonment without bail. He should be in jail to facilitate police investigation and the question of innocence or him to be free is purely academic. It needs a lot of courage for the judges to recognise his constitutional right to be free and release him on bail.

An accused is not expected to cooperate with the police to find him guilty of an offence. Our fundamental rights protect us from giving evidence against ourselves.

When our constitutional obligation is not to incriminate ourselves before the police or the court and there is the cardinal principle of justice that an accused should be treated as innocent, why bail should be refused easily just because of the FIR is a fundamental question.  Granting bail means he must be available for the trial and behave properly.

The social and economic consequences must also be weighed if an innocent family bread earner   is thus confined only for the allegation against him. This amounts to punishing not only the accused but his family members also before he is found guilty.

In my view bail should be refused only if his past record shows he is a danger to society and not for the convenience of others.

Our courts must abhor being used for politics. It is so blatant that criminal justice system is abused for repression of the opposition. We have preventive detention law for use against the politicians.

Lakhs of criminal cases are pending but not ready for hearing. Either the charge-sheet is not ready or witnesses are not found for producing before the court. The judges cannot dispose of the cases not ready for disposal.

If not more than half, at least half of the cases are politically motivated or outright false or frivolous to harass the weak ones for the antagonism of local politics.

If bail is denied so easily and the accused is sure to suffer imprisonment there is no reason for taking the trouble of completing the investigation  and commencing  the trial to prove the case.

Apart from the police, there are other agencies or bodies with power to arrest. The Supreme Court's clear direction is that no arrest should be made without an arrest warrant from the court. The police and others find it inconvenient to follow this direction strictly. Anybody with any State power suffers from lordliness of power.

This is not appreciated that the courts do not exist only to punish the offenders of law but also for protection of the constitutional rights of an accused. It is basic for justice that an accused is innocent until proved guilty through a court's impartial trial.

The speedy trial is no concern, imprisonment without bail is unnecessary. Imprisonment of an under trial prisoner helps lies and injustices but not the cause of justice. The person on bail remains in custody of the court and not fully free.

The judiciary must do what is for the judiciary to do and stand between constitutionalism and police state.

Police must be made accountable for filing unjustified and false cases thereby hindering the course of justice and also adding to the burden of the court.

We are to worry that our justice system is crumbling and losing public faith for lack of effective presumption of innocence, no speedy trial and no bail. The protection of rights and presumption of innocence must begin at the beginning, with the arrest. 

Let us not make justice a travesty by helping to deny the rule of law. The rule of law does not support arbitrary arrest and arbitrary refuse of bail. Bail means most importantly an accused's right to defend himself freely. 

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