YEARS AGO the Supreme Court of India laid down a dictum: bail is the rule, jail exception. It was signalling a message to the lower courts not to deny bail to the accused unless there were compelling reasons to do so. However, even now many undertrial prisoners remain in jail for long periods.
People's Democratic Party leader Abdul Naser Mahdani, who was arrested nine and a half years ago and tried in the Coimbatore bomb blasts case, remained in custody without bail or parole until the special court found him innocent and acquitted him this year.
One hundred and thirty-nine persons taken into custody in connection with the Marad killings have now been in jail for four and a half years as undertrial prisoners. Like Mahdani, they too have been denied the benefit of the principle laid down by the apex court.
Marad, a fishing village on the Kozhikode coast, was the scene of a clash in which five persons belonging to two communities were killed and about 100 houses destroyed in January 2002. Police filed a case against about 300 people in connection with the incident.
On May 2, 2003, Marad witnessed another ghastly event. Nine persons were killed on that day in a mob attack, which, according to the police, was an act of revenge by relatives of one of the victims of the earlier clash. One of the nine was said to be a member of the raiding party, who was killed accidentally.
The 2003 incident was widely seen as a watershed. There had been stray communal clashes in Kerala even earlier, but this was the first instance of organised violence inspired by religious fundamentalism.
According to Dr KN Panikkar, a left-wing historian and former Vice-Chancellor of the Sri Sankara Sanskrit University, it indicated that "communalism has arrived in Kerala." He wrote, "It is a proof that the stage of proto-communalism, which had a long period of incubation, is over."
In the earlier phase, he noted, a sense of religious division had slowly emerged, socially articulated through organised religiosity. Organisations of different religions vied with one another to bring the faithful to the streets. Religious practices spilled over from the domestic and sacred spaces to the public space, eliminating in the process the distinction between religious beliefs and religiosity.
P. Parameswaran, the foremost exponent of Hindutva in Kerala, also saw the second Marad incident as different from what had happened earlier. The Rashtriya Swayamsevak Sangh's organ, Organiser, quoted him as saying in an interview that it was not a clash, but an unprovoked, premeditated and one-sided attack.
Nearly 500 families belonging to one community fled the village after the incident fearing retaliation. Many of them have still not returned. Some who came back left again following threats.
A total of 139 persons are facing trial in connection with the killings of 2003. They include members of different political parties. The examination of prosecution witnesses having been completed, the trial has entered the closing stages. The police usually oppose grant of bail on the ground that the accused may interfere in the investigation or tamper with the evidence. Since the charge-sheet has been filed and all prosecution witnesses have been examined, that argument no longer holds good in this case.
There is evidence of gross discrimination in the treatment of those charge-sheeted in connection with the two rounds of violence in Marad. While those involved in the events of 2002 were granted bail, those taken into custody in connection with the events of 2003 were not given bail or parole.
Like Abdul Naser Mahdani, the Marad accused are victims of the apathy on the issue of human rights violations among the authorities as well as the people. The system of jurisprudence, which the country has adopted, demands that an accused be presumed innocent until proved guilty. But many people presume the accused in cases of extremist violence to be guilty until proved innocent. They are ready to acquiesce in the denial of human rights to such persons.
Looking beyond the legal process that is under way, the problem of restoring the social equilibrium that the violence in Marad destroyed is yet to be addressed seriously. As Dr Panikkar noted, "the social base of the secular parties has been eroded and a fairly large section of the population has become ideologically communal, even if not politically so."