Five cases on personal liberty decided by Justice DY Chandrachud

From a reading of the previous orders and judgments passed by Justice Chandrachud, it appears he has more often than not batted in favour of personal liberty.
Justice Chandrachud
Justice Chandrachud

Supreme Court Bench headed by Justice DY Chandrachud, on November 11 granted bail to Republic TV Editor-in-Chief, Arnab Goswami in an abetment to suicide case against him.

The day long hearing was marked by certain observations by Justice Chandrachud on personal liberty and the obligation on Constitutional courts to safeguard the same.

If we don't interfere in this case today, we will walk on path of destruction. If left to me I won't watch the channel and you may differ in ideology but Constitutional courts will have to protect such freedoms..." he said.

When pointed out that Goswami had first moved a bail plea before Magistrate before it was withdrawn to approach a forum that suited him, Justice Chandrachud responded that Technicality, this cannot be a ground to deny someone personal liberty.

The Court has come under flak for enlarging Goswami on bail pointing out numerous other instances when bail has been denied to various other accused persons and activists.

But interestingly, Justice Chandrachud has more often than not batted in favour of personal liberty in his judicial pronouncements.

Below are a few cases in which Justice Chandrachud was confronted with issue of personal liberty/ bail.

Bhima Koregaon
Bhima Koregaon

Bhima -Koregaon arrests

The Supreme Court had, in September 2018, rejected a plea seeking constitution of Special Investigation Team to probe into the arrests of lawyers and activists made in connection with the Bhima Koregaon violence.

The judgment was delivered by a three-judge Bench headed by then Chief Justice of India (CJI), Dipak Misra. Justice AM Khanwilkar had written the majority opinion on behalf of himself and Justice Misra.

However, Justice Chandrachud who was the third judge on the Bench, penned a strong dissent. The petition had been filed by historian Romila Thapar and four other activists and the Maharashtra government had questioned its maintainability.

As with the case of Goswami, Justice Chandrachud J. opined that technicalities cannot be allowed to override substantive justice.

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The judge also berated the Maharashtra police for what he termed as using electronic media selectively for shaping public opinion.

Referring to the press conference held by Pune Police immediately after an interim was order passed by Supreme Court, Chandrachud J. said that it was an attempt to selectively leak information and termed it “disconcerting”.

He added that the use of electronic media and police briefing by media has become a way of shaping public opinion.

Further, referring to the letter allegedly written by one of the accused Sudha Bhardwaj, Chandrachud J. noted that it was flashed on a TV channel and selective disclosure of probe details cast cloud on the fairness of the investigation.

He went so far as to raise doubt on whether Maharashtra police can carry out the investigation in a fair manner.

The judge concluded by ordering an SIT probe while stating that voices of opposition cannot be muzzled because it is unpopular.

Hadiya case

Another important judgment by Justice Chandrachud on personal liberty came in the Hadiya case. This was also decided by the same Bench which comprised then CJI Dipak Misra and Justice AM Khanwilkar. In this case, however, the judgment was unanimous with all the three judges ruling against Kerala High Court which had annulled the married between Hadiya and Shafin Jahan.

Hadiya, who was a Hindu, had converted to Islam and had married a Muslim Shafin Jahan. The Kerala High Court had annulled the marriage stating the same was not free from coercion. It had also ordered Hadiya to be place in the custody of her parents.

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Justice Chandrachud, in his separate concurring judgment, wrote that the Kerala High Court, in the case, treaded on an area which must be out of bounds for a constitutional court. The views of the High Court have encroached into a private space reserved for women and men in which neither law nor the judges can intrude, the judgment noted.

"The High Court was of the view that at twenty-four, Hadiya “is weak and vulnerable, capable of being exploited in many ways”. The High Court has lost sight of the fact that she is a major, capable of taking her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases. Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms. Interference by the State in such matters has a seriously chilling effect on the exercise of freedoms,” the judgment said.

The court, therefore, ordered that Hadiya be released from her parents’ custody.

Against imposition of disproportionate bail conditions

In a very recent judgment, Justice Chandrachud held that conditions which a court imposes for the grant of bail have to balance the public interest in the enforcement of criminal justice with the rights of the accused.

This was a case of a US Green card holder who moved the court to relax his bail conditions so that he could travel to US. The accused, an Indian citizen was a resident of USA since 1985. He used to frequently visit India. He was arrested in February 2020 when he was on one his trips to India. The Bombay High Court released him on bail in May 2020 while ordering that his passport and green card be surrendered and that he should not leave jurisdiction of Thane Police Commissionerate without prior permission of the trial court.

He subsequently moved the High Court pointing out that he had to travel back to US for a short period to re-validate the Green card as prescribed under the US Immigration and Nationality Act 1952. He, therefore, sought relaxation of the bail conditions imposed in May but the plea was rejected.

The bench headed by Justice Chandrachud over turned this decision of Bombay High Court and allowed the accused to travel to US for a period of 8 weeks.

“The human right to dignity and the protection of constitutional safeguards should not become illusory by the imposition of conditions which are disproportionate to the need to secure the presence of the accused, the proper course of investigation and eventually to ensure a fair trial. The conditions which are imposed by the court must bear a proportional relationship to the purpose of imposing the conditions,” he stated.

Interim bail to Sanjay Chandra to visit Covid positive parents but no regular bail

A bench headed by Justice Chandrachud granted interim bail for one month to Unitech promoter, Sanjay Chandra on July 7 taking into account the fact that both his parents were infected with Covid-19.

However, justice Chandrachud later also denied regular bail to Sanjay Chandra and his brother Ajay Chandra on the ground that the two brothers have not complied with the October 2017 order of the Supreme Court as per which Rs 750 crore was to be deposited with the registry of the court by December 31, 2017, to be eligible for bail.

“Since the conditions which were imposed in the order dated 30 October 2017 have not been complied with, we are unable to accept the submission that the applicants should be released from custody,” the court said.

The two brothers had claimed in their bail application that they had deposited more than Rs 770 crore and were, therefore, eligible for bail.

The court, however, noted that the deposit was made after the deadline of December 31, 2017and that a part of the deposited with the court came from monetization of assets of Unitech Limited

Sanjay Chandra was arrested by the Economic Offices Wing of the Delhi police in March 2017. Investigating authorities have maintained that prima facie probe indicated that money which has been realised from the flat buyers has been siphoned off.

Bail to undertrial after 3 years in jail

A Bench headed by Justice Chandrachud on June 9, 2020 granted bail to a person who had been languishing in jail for over 3 years as an undertrial.

The person was accused of committing dacoity, kidnapping and causing voluntary hurt.

The court noted that the accused had already spent over 3 years in custody and charges had also not been framed yet.

“Having considered the rival submissions, we are of the view that it is fit and proper that the appellant be enlarged on bail, subject to such terms and conditions, as may be imposed by the trial Court,” the court ruled.

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