On liberty, the lack of judicial consistency
Decisions appear to be influenced by the status of the individual and the partisan political climate
Let’s send the message across to every High Court. Please exercise your jurisdiction to protect personal liberty. Because that’s the ultimate reason for our existence as constitutional courts... if this court does not intervene today, we are travelling on the path of destruction...”, said Justice DY Chandrachud in the Supreme Court (SC) while granting bail to television anchor, Arnab Goswami on November 11.
Just a day after this pronouncement on personal liberty, the Meghalaya High Court declined to quash a criminal case against senior Shillong-based journalist Patricia Mukhim, for her Facebook post about continued attacks on non-tribal people in the state. Mukhim is a well-regarded editor, but is not a television celebrity. If she were to go to jail tomorrow, Union ministers are unlikely to tweet in her support nor will it spark off well-choreographed street protests and social media outrage about an Emergency mindset. But as a citizen, she has the same fundamental rights to personal liberty as anyone else. As do dozens of other journalists charged with sedition because their writings are considered anti-establishment.
The selective application of definitions of personal liberty exposes the double standards in the judicial system. This is the same SC which abdicated its duty when confronted with numerous habeas corpus pleas filed by those imprisoned in Jammu and Kashmir. It turned down a bail petition on medical grounds for noted lawyer-activist Sudha Bharadwaj who has been in jail for more than two years. This is also the same SC that was reluctant to intervene when a Kerala journalist, Siddique Kappan, was arrested and charged last month under the Unlawful Activities Prevention Act (UAPA) by the Uttar Pradesh (UP) police while on his way to report on the Hathras case. While finally issuing a notice to the UP government, the court asked why the petitioner had not approached the Allahabad High Court for bail instead. Ironically, no such suggestion was made in the Goswami case where the lower court’s jurisdiction was bypassed.
Judicial discretion in bail petitions must be governed by procedural certitude. Yes, an abetment to suicide charge that smacks of political vendetta should be bailable. But then, shouldn’t the same principle apply when journalist Prashant Kanojia is arrested by the UP police and kept in jail for two months for a retweet related to the Ram temple in Ayodhya? Why should a case involving alleged misuse of State power by the Opposition-ruled Maharashtra government be seen as any different to its similar abuse of power in the BJP-ruled Uttar Pradesh?
Judicial responses to bail petitions are increasingly being guided by the status of the arrested person and the prevailing partisan political environment. What else explains the manner in which the bail pleas of the anti-Citizenship (Amendment) Act (CAA) activists arrested under UAPA have been handled by courts? It is almost as if the highly-polarised debate on CAA has meant that anti-CAA protesters are treated as
anti-nationals” or “urban Naxals” who must be imprisoned for their dissenting views.
No case exemplifies the hollowness of the notion of personal liberty than that of Stan Swamy, an 83-year-old UAPA detenu, arrested last month in the Elgar Parishad case. Several Left activists have been arrested in this case for their alleged Maoist links. Swamy, a lifelong tribal rights activist, filed a petition in a special court that he be allowed to use a straw-sipper to drink water as he cannot hold a glass properly because he suffers from Parkinson’s disease. The National Investigation Agency (NIA) lawyers asked for 20 days to file a reply to the application: Nearly three weeks to reply to a request to use a straw-sipper to drink water, can there be anything more ludicrous and morally repugnant?
Now, consider if Swamy had been a politician or eminent citizen, and not a human rights activist. As is evidenced in several cases, soon after a politician or influential figure is arrested, they get shifted to a hospital or a special facility, complaining of chest pain. Contrast this with another octogenarian Elgar-accused, Varavara Rao, who was arrested in June 2018 and has struggled for proper health facilities despite his weakening condition. It is only now that the Bombay High Court has now ordered that he be shifted to a hospital.
Which is why Justice Chandrachud’s words need to resonate well beyond his courtroom if they are to truly serve as a moral and legal compass for the criminal justice system. This is a country where more than 70% of prisoners are undertrials. At the end of 2019, more than 100,000 people were lodged as undertrials for more than a year. As cases pile up, jails are overcrowded and increasingly unmanageable. Why should those queuing up for bail in petty crime cases have to wait for months for a court listing while high-ranking individuals get an urgent hearing even when courts are in recess?
The perception of special treatment for the privileged is against the fundamental constitutional principle of equal citizenship. The nation wants to know why a television anchor’s personal liberty is any greater than that of an aam aadmi or aurat.
Post-script: Prime time TV studios of certain channels are now mini-courtrooms where the cardinal jurisprudential principle of innocent till proven guilty is reversed. When actor Rhea Chakraborty was accused by these channels of abetment to suicide in the Sushant Rajput case on the basis of pure innuendo, the screeching headline was: “When will Rhea be arrested!” Will those news channels now apply the same rules to themselves?
Rajdeep Sardesai is a senior journalist and author
The views expressed are personal