Today anybody can be arrested at any time and courts will not grant bail: Senior Advocate Kapil Sibal

The reluctance of courts in granting bail has stifled liberty in the country, Senior Advocate Kapil Sibal recently said.

The veteran lawyer said that laws are being misused to settle scores with leaders of opposition parties and the same will stop only if courts stand up against the same.

“Today, the situation in our country is anybody can be arrested at any time and the courts will not give you bail. Where are we going as a nation? How many times can you fight? Some people don’t have the wherewithal to pay lawyers. Some of them are very poor and they suffer. In this state of affairs, what do you do as a lawyer?” he said.

In this regard, he took the example of Prevention of Money Laundering Act (PMLA), saying it was being weaponised to target the opposition.

“Laws are misused to destroy, to settle scores, to send a message. You know the PMLA is being used against the opposition leaders. Justice only comes when the court stands up and says you can’t just do this. All this is now happening at the time of elections. In Chhattisgarh, in Jharkhand, in Rajasthan, in West Bengal, in Telangana, in Orissa, you name it. Every State where there is the opposition, you are having the same kind of problems,” he said.

During the interview, he also opined that laws themselves may not be the problem unless they are misused.

The comment was made in response to a question on laws such as the Unlawful (Activities) Prevention Act and the Prevention of Money Laundering Act (PMLA), both of which were enacted when the Congress government was in power.

“We may have brought in PMLA but we never knew that the PMLA could be used in this fashion and we never used it in that fashion … All laws are fine, it is only the misuse of the laws that leads to this,” he said.

Sibal was in conversation with journalist Nidhi Razdan when he made the comments.

In his interview, Sibal also opined that liberty is dead in India and no Constitution or court can save it because it is dead in the hearts of the people.

The senior lawyer made the comment while referring to a quote by US Judge Billings Learned Hand.

“The learned Judge Hand said ‘liberty lives in the hearts of men and women there. When it dies, no Constitution, no law, no court can save it.’ … Liberty is dead. No Constitution, no law, no court can save it because it is dead in the hearts of men and women in India. It is a fact,” Sibal said.

He also flagged concern that trial courts are often hesitant to grant bail even if there may be no basis for the case, leaving accused persons to remain in jail for years on end.

When Sibal was asked about why action is slow when it comes to such matters, including in Umar Khalid’s case, despite the Chief Justice of India (CJI) often speaking on the duty to protect civil liberties, he replied,

“The CJI has given some very good judgments on this subject. There are great bright sparks in judiciary also but by and large in trial courts you will never get bail. But you see, in the trial courts, you would never get bail and the Chief Justice of India himself said that, that ‘why do we (Supreme Court) have to give bail?'”

He also noted that Umar Khalid’s case was scheduled to be heard soon by the top court and that he would not comment on it.

When asked why Supreme Court orders to crack down on hate speech are not being followed, he said that people are defying the Supreme Court.

“They say ‘we don’t care’, and that is why I said if liberty dies in the hearts of men and women, no Constitution, no courts, no law can save it. That is what is happening,” he said.

He added that if late Supreme Court judge, Justice PN Bhagawati were alive today, he would have ordered suo motu action.

He expressed concern over a recent incident where a teacher was seen asking students to slap a Muslim classmate.

“What has happened to that? Nothing has happened. Somebody is driving a car and runs over people, he gets bail. People are asked on the street to say Jai Shri Ram, otherwise they say ‘we’ll beat you up’. Which Court has taken cognizance of it? If Justice Bhagwati were here, he would have taken suo motu cognisance of it. What are we doing to our country and for what?” he asked.

The interview also touched upon the recent UAPA case against the news portal, NewsClick.

Replying to a question on whether the authorities can seize a person’s phone without any supporting paperwork, Sibal said that it would amount to an invasion of one’s privacy.

“What’s the point of the privacy judgment? That you can just see somebody’s mobile phone and just go through it? Without any paperwork, it is illegal. Even if there was paperwork, what business do they have to take my phone and look at all the intimate conversations that a person has?” he asked.

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