While the origin of the phrase “kangaroo court” is still not certain, the term is quite clearly defined by the Merriam-Webster dictionary as “a mock court in which the principles of law and justice are disregarded or perverted.” I would modify the term to “kangaroo justice” where due process of law is given short shrift.
Three incidents in recent history make us wonder whether we live in an era of kangaroo justice: (1) In December 2019, four men accused of the rape and murder of a young woman were shot dead by the police when, while in judicial custody, they were being taken to the scene of the crime near Hyderabad for a reconstruction of events as part of the investigation. The subsequent judicial enquiry concluded that these men were summarily eliminated and indicted ten police personnel in this connection. (2) In April 2023, Atiq Ahmed, a former Member of Parliament, and his brother, Ashraf Ahmed, in judicial custody in connection with several crimes, were shot dead by assailants posing as media persons, in the presence of UP police personnel, while being taken for medical examination to hospital at the unearthly hour of midnight. (3) 84 year old Father Stan Swamy, an accused in the Bhima Koregaon case, passed away in July 2021, after a series of ailments, while in judicial custody, without being given bail on medical grounds.
In the first two instances, summary executions by uniformed persons and by ordinary citizens made a mockery of the rule of law. Legal processes were unfortunately short-circuited to render instant justice (injustice?). While there was public support for the two actions, this does not behoove a democratic society that ought to be totally committed to the rule of law. The third case is even more unfortunate: an octogenarian social worker, who was not questioned by the NIA during his incarceration for eight months in Taloja prison near Mumbai, was refused bail even when it was apparent that his health was failing and that his release on bail posed no threat to the state or society.
“The wheels of justice grind slowly, but grind exceedingly fine” is a metaphor attributed to both ancient Greek and Chinese philosophers, acknowledging the slow pace of delivering justice, though justice is finally done. In the Indian context, delivery of criminal justice is often excruciatingly slow, with the main stakeholders at the pre-trial stage — the police, victims and their families and the accused — left with a feeling of frustrated helplessness as cases drag on for years. The phenomenon of ‘encounter specialists’ taking the law into their hands to dispose of criminals and of public lynching of notorious ant-social elements are but symptoms of a deeper malaise. Shoddy investigation of crimes, prompted sometimes by political pressure and sometimes by the lure of lucre, and interminably long periods between the commission of a crime and the final verdict of guilt seriously affect the credibility of the criminal justice system.
It is against this unsatisfactory background that recourse is had to the arrest of persons for even petty crimes and/or where they are not habitual offenders, just to satisfy public sentiment. Once arrested, the accused remain in jail because, in many cases, they cannot manage to give the surety/security required for grant of bail. The courts and the police are reluctant to trust the release on bail of persons on personal bonds/undertakings. Non-granting of bail and overcrowding in jails are two sides of the same coin. According to the Bureau of Police Research and Development, in 2022, India housed 5.73 lakh persons in its jails as against a prison capacity of 4.36 lakhs. The National Crime Records Bureau has reported that the proportion of people in jails, who are not convicted, rose from 33% in 1947 to 66% in 2012 and 76% in 2022.
More disturbing is the increasing trend of arrests of those deemed by the ruling dispensation to be opposed to them politically or those who raise their voice against actions of those in power that smack of restraint on or misuse of constitutional rights — these range from politicians of opposition parties to “anti-nationals” and “urban naxals”. The draconian provisions of the Unlawful Activities (Prevention) Act (UAPA) and the Prevention of Money Laundering Act (PMLA) on grant of bail keep those accused under these Acts in prison for years on end. Under both laws, the court has to be satisfied, before releasing the accused on bail, that a prima facie case of guilt is not made out by the prosecution: this has led to a situation today where courts at all levels are reluctant to grant bail, never mind the provisions for bail and bonds under the newly enacted Bharatiya Nagarik Suraksha Sanhita (BNSS) (or its predecessor Act, the Code of Criminal Procedure). It has long been a judicial precedent that bail ought to be refused only where (a) the offence is likely to be repeated while on bail; (b) the accused may abscond; (c) witnesses may be influenced; (d) evidence may be tampered with. The Hindu newspaper has highlighted (September 10, 2022) the abysmal conviction rates of 3% for those arrested under UAPA between 2018 and 2020, and 0.05% under PMLA until March 2022. As a consequence of the stringent provisions for grant of bail, the accused in the Bhima Koregaon case, Umar Khalid in the Delhi Riots case, AAP politicians Arvind Kejriwal and Manish Sisodia in the Delhi liquor policy and former Jharkhand CM Hemant Soren have been in jail for months and years on end without commencement of trial. The eagerness of a state like Maharashtra to enact the Special Public Security Act, modeled on similar legislation in Chhattisgarh, Odisha and Telangana, with provisions for keeping lower courts from intervening in executive actions under the Act, does not bode well for civil liberties of citizens.
What is clearly required to safeguard the right to liberty of citizens are three sets of legislation to check abuse of authority:
(1) Requiring the courts to reach a preliminary conclusion about the possible guilt of the accused under the UAPA/PMLA vitiates the judicial process of a fair trial. It is essential to delete the proviso to Section 43 D(5) of the UAPA which reads “Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” Similarly, Section 45 (ii) of the PMLA which reads “where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he (sic) is not guilty of such offence and that he is not likely to commit any offence while on bail;” deserves to be removed from the statute book.
(2) The right to bail must be enshrined as a fundamental right, under either Article 21 or 22 of the Constitution of India. This will ensure that special laws do not tamper with the right to bail of an accused, which should be governed only by laws of general application like the BNSS.
(3) India, unfortunately, has no statute governing tort law. Legislation must be put in place which provides for legal damages in the form of monetary compensation for confinement in prison which does not result in conviction. This compensation would be payable by the state. However, where a miscarriage of justice which leads to incarceration is established in a court of law as motivated by mala fides on the part of specific government functionaries or other individuals, compensation to the affected party would also be payable by the concerned persons. The same principle of individual as well as state liability would apply to all deaths in police/judicial custody that are attributable to gross negligence or deliberate actions in violation of the rule of law by the guardians of law or other persons.
Since it is evident that the executive at the Union and State levels seems to lack both the moral authority and the resolve to ensure that law enforcement agencies do not overstep their powers, it is high time that the legislature and the judiciary step in to ensure that the ordinary citizen is protected from arbitrary actions that interfere with her/his enjoyment of personal liberty. This will be a lasting tribute to the framers of the Constitution of India in the seventy fifth year of the Republic of India.
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