When will citizens get the right to sue the state for wrongful confinement?

Unlike other countries India does not have ‘Law of Torts’ but even SC has observed that we need one to make public servants accountable for their action and make police pay for false cases

When will citizens get the right to sue the state for wrongful confinement?

Sanjukta Basu

Soon after young comedian Munnawar Faruqi was granted interim bail by the Supreme Court of India this morning, some voices were raised to say this was welcome but not enough. Others said this was too little and too late. Many pointed out that this was not justice. Faruqi after all had already spent 36 days in jail for a joke he evidently did not crack and his bail petition had been rejected thrice in one month by courts below the Supreme Court.

Even more significantly, the usual suspects weighed in to express their disappointment that his jail term has been cut short. A few consoled themselves by saying that old habits die hard and Faruqi can be trusted to crack jokes again to hurt Hindu sentiments.

Concerns were expressed on the judicial system that requires a victim of the system to go right up to the Supreme Court of India to obtain bail. Some suggestions were also made that the mechanical interim order by the Supreme Court, which took less than 10 minutes to pass it, was not enough. The apex court could and possibly should have pulled up the lower courts for not only rejecting his prayers for bail but also the High Court for its failure to uphold the law and waste its time over a frivolous complaint.

If someone can be put in jail on the assumption that he might crack an offensive or hurtful joke, then the assumptions can be extended to anything and everything.

Faruqi has prayed not just for bail but also for quashing the FIR against him. One has to wait for the Supreme Court to decide the case first and see what conclusion it finally draws on the conduct of Indore Police and the Indore Bench of the High Court.

In an almost identical case, a Delhi court released freelance journalist Mandeep Punia on bail earlier this week. He was accused of attacking policemen, preventing them from discharging their duty and misbehaving with the SHO and also of instigating the farmers at the Delhi border. The more plausible reason is that the young journalist had exposed the role of Delhi Police in escorting a mob which attacked the farmers. While Delhi Police claimed the mob comprised local residents who wanted farmers to leave and vacate the place where they have been camping since November 26, Punia’s video records exposed them as BJP workers.

But Punia almost certainly got away lightly because there was evidence in the form of videos to show that scores of policemen had pounced on him and dragged him away. The video posted on social media went viral, forcing Delhi Police to drop him like a hot potato. Had these videos not come to light, it is doubtful if he would have secured bail so easily.

The Court referred to the nearly seven-hour delay in registering an FIR, the victim, complainant and witnesses all being policemen, which, the court held, ruled out any possibility of the accused influencing them. The Bail order also stated that it is “a well settled legal principle of law that ‘bail is a rule and jail is an exception’”, and that further judicial custody in this case “would not serve any cogent purpose.”

The trajectory of these two cases once again proves that police are a law unto themselves and that there is no knowing who will get arrested, when and for what. Indeed there is no clarity on who might get bail and whose bail applications might get rejected. If ‘Bail is right, jail exception’ is the principle, why are farmers held by Delhi Police still in jail?

As ordinary citizens what we are seeing is that justice is driven by media perception, public outrage and political and religious affiliations. How will we retain our faith in rule of law?

There is only one way forward. The Government, Police and the Judicial officers must be made more accountable for their action. Any wrongful action of implicating innocent citizens, framing false charges, planting false evidence and curtailing liberty of citizens should not go unpunished.

There should be laws to enable citizens to sue the state for illegal arrests, incarceration and malicious prosecution. Class action suit against Police and State should be a norm where monetary compensation is paid from erring public servants’ salary or departmental budgets.

These cases fall under the Law of Torts which is not commonly used in India but even the Supreme Court in a recent case said legal fraternity should develop the Law of Torts in India.

Views expressed are personal

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