Why Chandrashekhar Azad’s ‘Conditional’ Bail is Disappointing

It is relevant to note that 15 of Chandrashekhar Azad’s co-accused were granted bail without any such conditions.

• Certain conditions were also imposed by the judge while granting bail, such as Chandrashekhar Azad not being allowed to visit Delhi for the next four weeks until the completion of the Delhi elections, which are without any basis or logic.
• It is clear from the order that the State has not been able to bring on record any evidence that would prima facie show any involvement of Azad or of offences committed.
• Unusual bail conditions such as this are not envisaged under the Criminal Procedure Code.
• These conditions curtail the basic right of a citizen from not only registering his dissent against the unfair practices of the government, but also stops him from informing the public about the state of their country.

Chandrashekhar Azad, the leader of the Bhim Army, was granted bail after being arrested in connection with the violence that ensued during the protests against the Citizenship Amendment Act (CAA) on 20 December 2019. It is the allegation of the Delhi police that he gave speeches near Jama Masjid that ‘incited’ people into ‘violently attacking’ the police and ‘damaging’ public property.

The grant of bail is certainly welcome, since prima facie, there is absolutely no evidence to back this claim, as also noted by the court in its order. But certain conditions were also imposed by the judge while granting bail, such as Azad not being allowed to visit Delhi for the next four weeks until the completion of the Delhi elections, which are without any basis or logic, and these must be questioned.

Delhi Police Has Failed to Produce Incriminating Footage Against Azad

The State, while arguing against the grant of bail, chose to rely only on tweets by him before the rally as being inflammatory, as well as stating that drone footage (the legality of which in itself is suspect) captured of the rally on 20 December would show the accused making statements likely to incite violence. The recovered CCTV footage is supposed to have been of such low quality that not only Azad, but even his 15 co-accused could not be placed on the scene on the basis of it.

In spite of two opportunities to produce any footage that would show him as having made inflammatory speeches, the Delhi Police did not do so.

Taking these into consideration, bail should have been ordinarily granted, along with the imposition of regular conditions such as personal surety and impounding of passport, as was given to his co-accused. But the court, in this case, went a step further and directed that Azad would not be allowed to visit Delhi for the next four weeks – and even when allowed for his medical visits, it would be with police escort.

Azad’s ‘Unusual’ Bail Conditions Aren’t Envisaged Under CrPC

The basic logic behind imposition of conditions at the time of grant of bail is to ensure that the accused does not tamper with the investigation in any way – such as by threatening witnesses or influencing the manner in which the investigation is conducted. The present case involves witnesses who are mostly police officers, and evidence that will likely be led will be CCTV footage that will remain accessible to Delhi police, and drone footage that is also manned only by them. This situation makes it exceptionally difficult for a civilian like Chandrashekhar Azad to tamper with any of the evidence or witnesses and would not be a concern.

Unusual bail conditions such as this and the one in the order passed by the Additional Sessions Judge, Karkardooma while granting bail to people arrested during protests against the CAA in Seemapuri, which said that they must appear before the Station House Officer to ‘clear their doubts regarding CAA’, are not envisaged under the Criminal Procedure Code.

The Supreme Court has not been ambiguous about the restrained manner in which conditions may be imposed while bail is granted. It has been held that any condition which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible by law.

Azad’s Bail ‘Conditions’ Due to Delhi Elections?

It is amply clear from the order that the condition of him not being in Delhi was imposed keeping in mind the Delhi elections, and not due to apprehensions of him hampering the investigation. What is also peculiar is that the judge seems to base this on the fact that he is neither a permanent resident nor an elector in Delhi, which is also not a valid basis to restrain a citizen from being in any part of the country. It is also relevant to note that the order does not record any arguments on behalf of the State with regard to the elections.

It is relevant to note that 15 of his co-accused were granted bail without any such similar conditions being imposed, and we must question why the State has been doggedly trying to ensure that the voice of this one man is taken away.

His lawyer argued in court that all he read during the rally was the Preamble of the Constitution and only tried to make people understand that the ill effects of the CAA would extend to not just Muslims but also the Scheduled Castes and Scheduled Tribes. As a clear connection to his speeches and movement having an impact on elections has been made in the order itself, we must look into why it is that the State fears Azad (who is also an advocate), whose grassroots work has been mainly about educating the SC/STs about their rights and ways in which to resist state impunity.

‘Conditions’ Imposed on Azad Infringe Upon Fundamental Rights

It is extremely unfortunate that an order that recognises the right to protest and register dissent against actions of the State as being fundamental, would impose conditions such as Azad requiring police escort to his house in Uttar Pradesh, for his medical check-ups in Delhi and for him to visit Jama Masjid to pay obeisance. There was absolutely no evidence on record to show that he would commit any action that required this invasion into his right to free movement.

The final conditions on bail imposed by the judge seem very disjointed from the earlier parts of the order which make it very clear that there was little to no evidence against Azad, and seem at odds with the rest of the order’s observations about civil liberties.

These conditions curtail the basic right of a citizen – working towards the upliftment of the most downtrodden sections of our society – from not only registering his dissent against the unfair practices of the government, but also stops him from informing the public about the state of their country. These kinds of orders mirror orders passed by the Supreme Court in habeas corpus petitions filed regarding Kashmir, where the imposed conditions on relief themselves violate fundamental rights, such as in the case of MY Tarigami.

Not All Officers of the Judiciary Are ‘Waiting for Violence to Stop’

In these trying times, where the Constitution seems to be the bastion we rely on, we have seen the higher judiciary not upholding the spirit of the Constitution while dealing with issues of misuse of the power of the State that have resulted in violence against students, minorities and citizens exercising their right to protest – and even loss of life. Keeping aside the imposition of these conditions, it is rather heartening to see officers of the lower judiciary standing up for the rights recognised by the Constitution, without ‘waiting for the violence to stop’.

(Ninni Susan Thomas is an advocate based in Delhi. This is an opinion piece and the views expressed are the authors’ own. The Quint neither endorses nor is responsible for them.)