The 2G spectrum trial has begun. The trial of the country’s largest financial scam will be watched keenly by outraged citizens fed up with corruption. Hopefully it will help stem the rot in the system.

It’s time. We want hard knocks. We want people in jail. We want to see the mighty fall. We want justice. We want it now. And don’t you dare lecture me about what justice really is. We have been suffering for decades, mister. We know.
But in our rush to right numerous wrongs, are we, the hugely harassed and outraged citizens of our floundering democracy, actually chopping away at the roots of the tree we seek shelter under? Are we helping to undermine democracy?
Our courts have been the last refuge of the powerless. Usually, they do not fail us. Like the Gujarat verdict this week, where 31 privileged Hindus were sentenced to life imprisonment for burning alive 33 Muslims in Sardarpura village in the post-Godhra violence of 2002.
With the largest number of convictions for murder and mob fury, this record-setting judgment may be a significant step in curtailing murderous mob violence. It greatly reinforces our faith in the judicial system.
But there are old cracks in that system that are getting wider. Also this week, some of the accused in the 2G scam, including DMK member of Parliament Kanimozhi who has been in jail for six months, moved the Delhi high court for bail. The prosecuting CBI had no objection to bail, it told the court once more. Respond on December 1, the high court told the CBI, and then we’ll decide. The CBI had three more weeks to change its mind. The accused lost three more weeks of freedom even before the trial began.
Many, including law minister Salman Khurshid, have pointed to the old Supreme Court remark that bail is the rule, jail an exception. In the eyes of the law, the accused are innocent till proven guilty. And as such, the rights and liberties of citizens are supposed to be respected. So unless the court has reason to believe that the accused will abuse their freedom and harm the trial if let out, they are allowed bail on certain assurances and sureties. Except in cases of murder and such.
But why are we surprised? We have not been following that basic rule of justice for decades. Our jails are full of people who are innocent in the eyes of the law. They often rot in jail for years before trial starts. About 70 per cent of prisoners are undertrials, only 30 per cent are convicted prisoners. India has one of the worst prison situations in the world — perhaps the worst in a respectable democracy — where appalling overcrowding leads to horrific human rights abuses and lack of basic prison amenities, including sleeping space.
Forcing an accused, who may be innocent and is presumed to be innocent until convicted, to undergo the horrors of a protracted jail sentence undermines the law and often makes innocents into criminals. It is a serious human rights abuse, and for decades India has been trying to clear up its backlog of undertrials. Last year, the government launched a programme to release 2,00,000 (of about 3,00,000) undertrials from jails across the country. These would be people who have been in jail for far too long, given the crime they are charged with.
This was another step in a process that had begun in 1977, when the Law Commission had taken up the cause of undertrials. Yet undertrials remain locked up for years, prisons get more congested by the day. And most inmates are the poor and underprivileged — those who can’t provide the necessary sureties, those who can be forgotten by society.
In short, there is nothing new in the courts denying bail to the accused, even before the trial has begun. Except that these are VIP jailbirds.
Our politicians, businessmen and other movers and shakers — from Suresh Kalmadi to A. Raja to Kanimozhi to the recently released Ramalinga Raju — are just getting to know how the other half live. Besides, they are shielded from the jailhouse atrocities that turn innocents into hardened criminals.
So, what me worry? Just that this was an ideal opportunity for us — the urban, privileged classes — to feel the pain of the undertrials and change the system. These were posh people accused of white collar crimes. They were even more acceptable than a scruffy old bearded doctor working for the rural poor who is locked up for years, accused of sedition, like Binayak Sen.
Yet we have failed. Why? Because we are so het up about wrongs and injustice that we don’t give a hoot about the process of justice. The public outrage about corruption probably had a big role in denying bail to Kanimozhi and company. Chillingly, the trial court judge declared that the prosecution CBI’s not objecting to the defendants’ bail “was of no consequence”.
Normally it is the prosecuting agency that insists on bail being denied to protect its continuing investigations, as it takes years to complete its enquiry and file a chargesheet.
Is the justice system too influenced by popular sentiment now? Is our post-Anna outrage about corruption in high places making our courts err on the side of caution? Have we so given up on the judicial process that we think, let’s beat them up right now, later they are sure to go scot-free anyway? To counter one wrong are we encouraging another — the curtailment of citizens’ rights and freedoms — one that weakens our society and democracy equally and perhaps more fundamentally?
Wilful suspension of the rights of legal innocents like undertrials is like mob justice. It’s a bit like encounter killings — do something, anything, to make us feel good. Incarceration before trial, much before conviction, has been used for decades by the powerful to subjugate the powerless and to make certain files look good. It needs to stop. And perhaps the courts need to reclaim their position up on the pedestal. They must not be influenced by popular sentiment.
Last year, the Ayodhya verdict by the Allahabad high court allowed the muscle-flexing majority to influence legal justice disregarding the Constitutional guarantee of equality before the law. That’s part of a disturbing trend.
The courts cannot be ruled by mob sentiment — especially now, in an increasingly intolerant, polarised society. The rights and freedoms of individuals must be supreme in a democracy, and our legal system must respect that.

The writer is editor of The Little Magazine. She can be contacted at: sen@littlemag.com