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There can be no better way for a judge of the Supreme Court of India to mark his birthday by celebrating the glorious constitutional duty that has been entrusted to him and his peers as officers of the highest court in the land. Last week, Justice D.Y. Chandrachud did precisely this, when he remarked, “[W]e are a constitutional court... If we as a constitutional court do not lay down law and protect personal liberty, then who will?” It was a salve for those who have doubted the Court’s ability to protect basic human freedoms in the country.
But even as the Court seems to have shown some self-awareness after an arguably long time, the circumstances in which this statement was made diminished its value considerably. The statement was made during the hearing that concluded in granting interim bail to TV anchor Arnab Goswami in a matter that was listed a mere one day after the petition was filed.
The application before the Supreme Court was in appeal against the decision of the Bombay High Court to refuse to entertain Mr. Goswami’s habeas corpus petition, citing procedure that no bail can be granted in a petition under Article 226 of the Constitution and requiring him to apply to a lower court for appropriate relief. The Bombay High Court, in issuing that order, merely followed the law. In response, in a unique turn of events, Mr. Goswami sought relief — simultaneously — from both the trial court (a sessions court) and the Supreme Court. This is arguably the first time that an accused has moved both the lowest and highest courts together.
The larger concern here is the decision of the Supreme Court to offer, barefacedly, Mr. Goswami special treatment of an order that ordinary citizens of this country cannot even dream of. Indeed, the entire process, starting with the original application at the Sessions Court in Alibaug, to the High Court in Mumbai, to the top court, was concluded in a total of only seven days. The extraordinary speed at which the judicial system seems to have worked to entertain Mr. Goswami’s plea is one thing to note. But observers are also surprised that the Supreme Court listed the matter for the very next day after receiving the petition, despite having placed the case under the Defect List after identifying a host of defects (at least nine) in his petition. If similar leeway was given to every citizen, the judicial system would be viewed with less suspicion and more benevolence.
In these circumstances, it comes as no surprise that an individual like Kunal Kamra, a comedian, makes certain remarks, albeit crude, on the series of unfortunate events; arguably, this is the view of a large section of the general public. This case has now become a textbook example of what power and influence can do for you in this country. Mr. Goswami, whom I regard as an exemplar non-journalist in the Indian media today, covered his bases by being the ‘loudest voice in the room’, and his arrest had many in the corridors of the Secretariat buildings scurrying to suddenly, and uncharacteristically, defend “free speech”.
For the past few years, particularly since the Bharatiya Janata Party-led government took power at the Centre, the performance of the judiciary has deteriorated to disappointing lows. It no longer stands on the pedestal of chief protector of freedoms: the government has done so much damage to personal liberty, but the courts, and especially the Supreme Court, have watched this indiscriminate and often, literally, violent trampling of dissent like mute spectators.
This is hammered home in incident after incident, and case after case: in the haphazard arrests of students and teachers made after the Delhi riots; in the treatment of dissenters against the patently unconstitutional Citizenship (Amendment) Act; in the persecution of veteran public intellectuals and social justice leaders in the wake of the Bhima-Koregaon violence; in the blatant disregard of the case of the political detenues in Kashmir... The list is disappointingly long and getting longer still.
Most recently, the 83-year-old Jesuit priest and tribal rights leader, Father Stan Swamy, who is suffering from Parkinson’s disease, and has been arrested in connection with Bhima-Koregaon, requested to be given a straw and a sipper in jail. Instead of granting him immediate relief, which would have been the most appropriate humanitarian response, the National Investigation Agency (NIA) court gave the prosecution two weeks’ time to reply. Elsewhere, the Supreme Court had earlier refused to entertain the petition of a journalist from Kerala, Siddique Kappan, who has been detained without any basis in Uttar Pradesh for over a month now, directing him to lower courts instead. The Court has now agreed to take up the matter later this week only after the journalist’s family approached the Court again, seeking similar treatment as Mr. Goswami, asking if they were not citizens of this country.
That the Supreme Court’s lightning response to Mr. Goswami’s plea is an exception to the rule is highlighted by the general position the Court appears to have taken in bail matters. In its April 2019 decision, in National Investigation Agency vs Zahoor Ahmad Shah Watali on the interpretation of the Unlawful Activities (Prevention) Act (UAPA), the Court essentially created a new doctrine that an accused must remain in custody throughout the period of a trial, even if evidence against the person is eventually proven inadmissible (and the accused is acquitted). The Supreme Court said that in considering bail applications under the UAPA, courts must presume every allegation made in the first information report to be correct, and the burden rests on the accused to disprove the allegations. This is virtually impossible in most cases. The litigious impact of this is tragic: bail hearings under the UAPA are now a mere farce; and high barriers of proof mean that individuals can be detained indefinitely.
But wait, it gets worse. The Supreme Court’s interpretation was on the UAPA alone, and not on general criminal procedure. But it has left a glaring loophole for rampant abuse by the government, police and prosecution alike. It has now become commonplace for dissenters to be charged (usually without any valid proof) with sedition or criminal conspiracy and under the UAPA. It no longer matters that evidence is weak. Once the UAPA is included in the first information report, lower courts have their hands tied. Bail must be refused outright, without examining the evidence, for this is what the Supreme Court has directed.
This pattern of arrest, first information report, prosecution and outcome have been followed in many cases involving dissent since the Supreme Court decision came about. The effect is dangerously reminiscent of the draconian preventive detention laws dating back to the dark days of the Emergency, where courts universally deprived people access to judicial remedy.
Whatever Justice Chandrachud might eloquently and passionately espouse in court, the bitter truth is that personal liberty has been relegated to the background in Indian jurisprudence today. A recent study by The Indian Express of 10 cases involving free speech that were heard by the Supreme Court earlier this year revealed that the Court gave relief only when the state and the petitioner were in agreement, and refused to do so when the state expressed objections.
This article would not have been written if Justice Chandrachud’s observations were the norm, i.e., wherever personal liberty is involved, the matter is taken up the next day and resolved at the earliest. But his observations come as a ray of hope: it is reassuring that there is at least someone in the Supreme Court thinking and speaking about personal liberty. As custodians of the Constitution, this is the bare minimum that a Supreme Court judge should be doing. Could it be that the sentinel on the qui vive is slowly coming to life again?
Justice Ajit Prakash Shah is retired Chief Justice, Delhi and Madras High Courts, and former Chairperson, Law Commission of India
This piece was first published in The Hindu.