You can’t get bail at Guantanamo

You can’t get bail at Guantanamo
M.J. Akbar
Byword in India Today: 27th May 2011


The rich are, as was well said, different from you and I: they have more money. In India, they have more lawyers. Does this mean that they are also more guilty? The law must take its course; no argument about that. What happens, however, when law becomes part of the public discourse?

Justice is not merely judgment, but also process. If the process is flawed the verdict is vitiated. Courts accept this and warn against the inequity inherent in a ‘witch-hunt’ or ‘trial by media’. Civilised jurisprudence is based on evidence and statute, not individual or collective emotion.

Justice rests on a fundamental principle: you are innocent until proven guilty. No wrong can be corrected by an absence of rights. The concept of pro bono has been devised to help those who cannot afford legal counsel, so that they can defend themselves in a trial. A police charge-sheet is the start of a trial, not its conclusion.

If DMK MP Kanimozhi consults astrologers, then she has probably been told that every planet in her constellation has turned retrograde. In the summer of 2009 she was a queen in Chennai and a princess in Delhi. Today, she is defeated in Chennai and the most high-profile prisoner in Delhi. But she is in jail as an accused, not as a convict. There is a world of difference between the two. If she is found guilty after due process, the judges must send her to prison as long as the law permits. But until that decision is made, she is innocent. In the interim, custody can only be a minimalist option, for a special set of reasons, for a finite and reasonable period. Instead, the cbi is demanding, and getting, what seems to be turning into an infinite extension of custody. This is injustice.

India lives by a Constitution that guarantees life and liberty. Bail is not a gift from those who wield temporary power (fortunately, power can only be temporary in a democracy); it is a right. Otherwise, we are one step away from a police state, in which any citizen can be locked up at the arbitrary will of authority. This has happened before, during the Emergency. We thought it would never happen again.

The CBI wants all the accused in the 2G case be kept in jail indefinitely, despite the fact that their interrogation is over, or should be. The courts comply, citing two reasons. One of them is “gravity of the case”. This is inaccurate. As it stands, there is only the gravity of an accusation, not the gravity of the crime. Crime is yet to be proven.

There is more than one opinion about what happened.

The Government of India’s official stand, stated in Parliament by telecom minister Kapil Sibal, is that there was no loss to government.

We all want to, and must, end corruption. But should we destroy the legal process in this effort?

The CBI is selective. There is evidence that Congress ministers were complicit in the decision through which 2G licences were granted. No action has been initiated against them. There is, however, neither administrative restraint nor legal constraint against the DMK, an ally which has been turned into a scapegoat to appease an outraged public.

The second official reason for denying bail is that the accused might tamper with evidence, or pressurise potential witnesses. A. Raja and Kanimozhi were free for many weeks after proceedings began. If they did not tamper or pressurise then, how can they do so now? This excuse is too thin to stand without an artificial prop.

Indian courts honour the right to bail. Wazlul Kamar Khan, whose name was on home minister P. Chidambaram’s “Famous 50” list of wanted “terrorists” sent to Pakistan, has been given bail in Maharashtra. Terrorism, one presumes, is more worrisome than corruption, whichever way you want to draw the chart of judicial gravity. No one has called Raja or Kanimozhi a terrorist. Why should an accused in a terrorist case be given bail, but not them?

Very Important People get into trouble everywhere. The police are rarely polite; it isn’t in their training manual. But the law respects the rights of an accused. Former imf director Dominique Strauss-Kahn was arrested from an airplane, locked up in a small cell and paraded before cameras, unshaven and haggard. He has been indicted on seven counts, including sexual molestation of a hotel maid. But he is out on bail. Recently, American billionaire Raj Rajaratnam became the face of financial corruption when he was convicted for insider trading. But the New York police did not seek to jail him before judgment.

There is one prison in the free world where you cannot get bail: Guantanamo, America’s preferred penitentiary for suspected terrorists. We are, fortunately, nowhere near that ominous stage yet. But the road to many destinations, including hell, can be paved with good intentions.