It might seem a distant memory in the aftermath of the Lok Sabha elections, but the Aam Aadmi Party was built on a platform of legal reforms. The Jan Lokpal Bill – the draft legislation to bring in an anti-corruption ombudsman – was not only at the core of the movement that spawned the party, it also ended up being the stated reason for the AAP stepping down from running the Delhi government.
So, it’s unsurprising that AAP chief Arvind Kejriwal’s first big move following the general elections was partly built on the back of another argument to improve the legal system, albeit one that seems harder to explain to the people and less emotive than the Lokpal.
“What we’re doing,” Prashant Bhushan, a senior leader in the party and the lawyer representing Kejriwal, told Scroll.in, “is taking on a practice that has become standard. It’s a practice that has caused havoc in the legal system and caused lakhs of people to languish in jail.”
Bhushan is referring to the tendency of courts to insist that any person accused in a criminal case has to furnish some money, whether through a bail bond or a personal surety, as a way of convincing the court that he will not flee.
According to both Bhushan and several other lawyers, this flawed process gives the wealthy an advantage, making it easy for them to leave jail. The rest, however, are dumped in prison. In fact, more than 70% of inmates in the legal system are undertrials. The Supreme Court has also on occasion made comments to suggest that financial bonds shouldn't be the only way to judge whether an accused is likely to continue appearing in court.
“There are many cases where people shouldn't be required to post bail just to secure their freedom,” said Gyanant Kumar Singh, a Supreme Court lawyer and legal expert. “There are many who are poor, destitute and simply can’t afford it.”
Bhushan claimed that the Code of Criminal Procedure did not require courts to ask for bail or personal bonds, yet they inevitably ended up doing so in practice. “There is simply no requirement for bonds to be furnished in such cases,” he said. “Yet, courts tend to proceed on the assumption that the accused in every criminal case must be released only on bail or a personal bond.”
For now, Kejriwal isn't relying primarily on a claim to poverty. Arguing in court on Wednesday after a magistrate asked him to post bail or submit a personal bond in a criminal defamation case, Kejriwal used the “innocence” argument. Essentially, the AAP chief told the court that as he is innocent, he didn't understand why he had to pay any money.
“And what’s to stop every other accused from saying the same thing?” Singh said. “Everyone will simply ask to be set free without paying bail, by insisting that they are innocent.”
Senior advocate Aman Lekhi also took a dim view of this approach. “The issue does have to be examined, but we can’t impose our preferences on the legal system. By openly choosing defiance, Kejriwal is trying to undermine the entire system.”
The metropolitan magistrate took note of Kejriwal’s concerns while deciding on the matter, but ultimately concluded that it could not provide “preferential treatment” to him. “This is not a case where the accused is, due to financial inability, unable to furnish bail bonds,” the court said. “The accused is just adamant to not furnish bail bonds or even a personal bond…the procedure of the courts cannot be thrown to the winds at the whims and fancies of the litigants.”
Because the court had explicitly covered the financially unsound argument in its order, Kejriwal himself was unable to turn his arrest into a class battle. The next day, fellow AAP leader Yogendra Yadav, who had been arrested for a “breach of the peace” by protesting against Kejriwal’s arrest outside Tihar Jail, went ahead and furnished Rs 5,000 to the court to secure his release.
But people in the party have nevertheless begun to make it a class issue. On Thursday, the AAP announced that, rather than protesting, it would start to go door-to-door in Delhi to explain to people why exactly Kejriwal is behind bars.
The specifics of this engagement will be decided at a large party workers meeting that has been called for Friday evening, but some of the material that the AAP had begun to put out already suggested that – in addition to training their sights on ex-Bharatiya Janata Party president Nitin Gadkari whose defamation complaint had brought Kejriwal to court – the party would also be talking of bail matters.
A video on Facebook that seeks to explain Kejriwal’s plight not only excerpts a section from the movie Gandhi, where the Mahatma refuses to pay bail, it goes on to insist that “there are thousands of poor people and tribals who are in jail because they can’t pay bail bond”.
Unlike with the Jan Lokpal movement, what the AAP is attacking here is legal practice rather than the law itself – meaning conventional lobbying for, say, altered legislation, will not suffice. “What better way do we have to fight this than taking a personal stand?” Bhushan asked. “This [Kejriwal’s actions] is the best way to attack this problem.”
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So, it’s unsurprising that AAP chief Arvind Kejriwal’s first big move following the general elections was partly built on the back of another argument to improve the legal system, albeit one that seems harder to explain to the people and less emotive than the Lokpal.
“What we’re doing,” Prashant Bhushan, a senior leader in the party and the lawyer representing Kejriwal, told Scroll.in, “is taking on a practice that has become standard. It’s a practice that has caused havoc in the legal system and caused lakhs of people to languish in jail.”
Bhushan is referring to the tendency of courts to insist that any person accused in a criminal case has to furnish some money, whether through a bail bond or a personal surety, as a way of convincing the court that he will not flee.
According to both Bhushan and several other lawyers, this flawed process gives the wealthy an advantage, making it easy for them to leave jail. The rest, however, are dumped in prison. In fact, more than 70% of inmates in the legal system are undertrials. The Supreme Court has also on occasion made comments to suggest that financial bonds shouldn't be the only way to judge whether an accused is likely to continue appearing in court.
“There are many cases where people shouldn't be required to post bail just to secure their freedom,” said Gyanant Kumar Singh, a Supreme Court lawyer and legal expert. “There are many who are poor, destitute and simply can’t afford it.”
Bhushan claimed that the Code of Criminal Procedure did not require courts to ask for bail or personal bonds, yet they inevitably ended up doing so in practice. “There is simply no requirement for bonds to be furnished in such cases,” he said. “Yet, courts tend to proceed on the assumption that the accused in every criminal case must be released only on bail or a personal bond.”
For now, Kejriwal isn't relying primarily on a claim to poverty. Arguing in court on Wednesday after a magistrate asked him to post bail or submit a personal bond in a criminal defamation case, Kejriwal used the “innocence” argument. Essentially, the AAP chief told the court that as he is innocent, he didn't understand why he had to pay any money.
“And what’s to stop every other accused from saying the same thing?” Singh said. “Everyone will simply ask to be set free without paying bail, by insisting that they are innocent.”
Senior advocate Aman Lekhi also took a dim view of this approach. “The issue does have to be examined, but we can’t impose our preferences on the legal system. By openly choosing defiance, Kejriwal is trying to undermine the entire system.”
The metropolitan magistrate took note of Kejriwal’s concerns while deciding on the matter, but ultimately concluded that it could not provide “preferential treatment” to him. “This is not a case where the accused is, due to financial inability, unable to furnish bail bonds,” the court said. “The accused is just adamant to not furnish bail bonds or even a personal bond…the procedure of the courts cannot be thrown to the winds at the whims and fancies of the litigants.”
Because the court had explicitly covered the financially unsound argument in its order, Kejriwal himself was unable to turn his arrest into a class battle. The next day, fellow AAP leader Yogendra Yadav, who had been arrested for a “breach of the peace” by protesting against Kejriwal’s arrest outside Tihar Jail, went ahead and furnished Rs 5,000 to the court to secure his release.
But people in the party have nevertheless begun to make it a class issue. On Thursday, the AAP announced that, rather than protesting, it would start to go door-to-door in Delhi to explain to people why exactly Kejriwal is behind bars.
The specifics of this engagement will be decided at a large party workers meeting that has been called for Friday evening, but some of the material that the AAP had begun to put out already suggested that – in addition to training their sights on ex-Bharatiya Janata Party president Nitin Gadkari whose defamation complaint had brought Kejriwal to court – the party would also be talking of bail matters.
A video on Facebook that seeks to explain Kejriwal’s plight not only excerpts a section from the movie Gandhi, where the Mahatma refuses to pay bail, it goes on to insist that “there are thousands of poor people and tribals who are in jail because they can’t pay bail bond”.
Unlike with the Jan Lokpal movement, what the AAP is attacking here is legal practice rather than the law itself – meaning conventional lobbying for, say, altered legislation, will not suffice. “What better way do we have to fight this than taking a personal stand?” Bhushan asked. “This [Kejriwal’s actions] is the best way to attack this problem.”