Judges are reluctant to grant bail to persons accused of the offence of sedition since they are also sub-consciously influenced by the nature of the offence and the public reaction that may follow, Madhya Pradesh High Court judge Justice Atul Sreedharan said on Sunday.
Justice Sreedharan opined that judges are also human beings and when a person is charged of being anti-national, it does weigh in the minds of the judges even if the act of the accused person might have been of giving a speech or an opinion which goes against the ruling establishment of the day.
“The moment the section is slapped on him, the judge does not want to give him bail. Why? ‘Log kya kehenge’ (what will people say)? It is all very well to say that we (judges) are independent, all that is fine. But even judges are human beings. At a sub conscious level, it works in their mind – the nature of the offence. A man has been locked up saying that he is anti-national, he is working against the State. Why, what is his offence? He has given a speech or having a declared an opinion which he feels is right against the establishment of the day. The man gets picked up. So, these kinds of amorphous laws, they create havoc,” he said.
Justice Sreedharan was speaking on the topic ‘Bail & Jail: The Rule and The Exception’ at a webinar organised by RMLNLU law college, Lucknow, and CAN Foundation.
He was specifically responding to a query from moderator, Vidhi Thaker on whether community service can be considered as a condition for grant of bail.
He said that for offences mala prohibitum (offences illegal only by virtue of statute) and for vague amorphous offences like sedition, community service can definitely be considered as a condition for granting bail.
Regarding sedition, he said that the offence is so vague that a clear definition of the contours of the offence is not possible.
“The anti-national phase that we are going through now – sedition. Something which is so amorphous. It is next to impossible to crystally define what sedition means,” he said.
The other kind of offences referred to by him were offences mala prohibitum (offences illegal only by virtue of statute)
While offences mala in se like theft, rape, murder etc are offences in every society historically, offences mala prohibitum (offences illegal only by virtue of statute) wreak havoc on personal liberty, he said.
In such cases, he opined, community service can be considered as a condition for granting bail.
In this context Justice Sreedharan did not hold back on his criticism of certain laws which he said were enacted without any thought being put into it
He went on to cite the example of the law criminalising triple talaq to make his point.
“What happens when an act which has been legal over a long period of time is suddenly made into an offence. Let us take the example of the talaq legislation which has recently been enacted. It was normal and legal in this country. The State could have illegitimated the effect of triple talaq. The legislature could have done that, no problem. The problem arose by making it a criminal act,” he said.
This, he said, was because a large number of people in his State, Madhya Pradesh are illiterate and had no clue that it had become a criminal offence.
“The literacy rate in Madhya Pradesh is very low. It is dismal in fact. When it comes to these cases, the person does not know that it is criminal (to pronounce instant triple talaq). It is very well and easy to say that ignorantia legis neminem excusat. But with the ground reality in our country, we cannot use the same yardstick as in Britain or America and say that the same principle should apply in full force in India. We have to take into consideration the ground reality that there are lot of illiterate people here,” he explained.
Similarly, the POCSO Act was a knee-jerk reaction to the Nirbhaya incident and that has led to the arrest and conviction of many young men who eloped with girls below the statutory age of consent.
“There was a case where a man was convicted for 10 years. It was statutory rape. The girl was about 16 years old and the man was 19 years old. They eloped. Two years later they were arrested and brought back. The man was tried and convicted for 10 years. The wife is there in the court room holding the child in the arms and she says ‘if you don’t suspend sentence then who is going to look after me and the child, the State?’,” he said.
In such cases, leeway should be given to the judge to consider imposing community service as punishment instead of the minimum punishment of ten years imprisonment, Justice Sreedharan said.
“These (POCSO and criminalisation of Triple Talaq) are not serious offences but created to placate perhaps a constituency. POCSO was a knee-jerk reaction to Nirbhaya incident. As far as statutory rape (with consent) was concerned, greater thought should have gone into it rather than making it punishable with minimum ten years. It is unconscionable,” he opined.
Justice Siddharth Mridul and Senior advocate Sidharth Luthra also spoke at the webinar.