Updated: Nov 20, 2020
Mumbai: On 11 November 2020, the Supreme Court granted bail to television show-host Arnab Goswami, who had been in judicial custody for seven days on an abetment to suicide charge related to a 2018 case. The merits aside, the manner in which the judicial machinery functioned to protect Goswami’s liberty was extraordinary.
The Bombay High Court, which rejected the interim relief sought by Goswami, sat on a Saturday to finish hearing the matter, reserved its order and pronounced it on the following Monday (9 November 2020). Goswami’s special leave petition to the Supreme Court, filed on Tuesday morning, was listed and decided the next day.
During the hearing, the Supreme Court made strong observations about the role of constitutional courts in protecting citizens’ liberties. “There has to be a message to High Courts,” it said. “Please exercise your jurisdiction to uphold personal liberty. We are seeing case after case. High Courts are failing to exercise jurisdiction. People are in jail for tweets!”.
"If we as a constitutional court do not lay down law and protect liberty then who will?".
However, when the Supreme Court’s own approach to cases concerning personal liberty is tested on the touchstone of these observations, the reality could not be more of a contrast.
Siddique Kappan: Imprisoned For 41 days
On 16 November, the Supreme Court stated that it was trying to discourage Petitions under Article 32 of the Constitution and sought the Uttar Pradesh (UP) Government’s response to journalist Siddique Kappan’s habeas corpus (literally, “produce the body”) petition. It adjourned the petition to 20 November.
Article 32 guarantees to every citizen, the right to approach the Supreme Court for enforcement of fundamental rights, including the right to liberty–by calling upon it to issue a writ of habeas corpus. Article 226 confers a corresponding right to approach a High Court.
In October 2020, the UP police booked Siddique Kappan, a freelance journalist, under the Unlawful Activities Prevention Act (UAPA), 1967, after he arresting him on October 5, while he was, with three activists from the Popular Front of India, on his way to the district of Hathras to report on the alleged gangrape and murder of a Dalit woman by upper-caste Thakur men.
On 12 October, when the habeas corpus petition, filed on his behalf by the Kerala Union of Working Journalists, was listed before the Supreme Court for the first time, the court adjourned the matter by four weeks and suggested that Kappan approach the Allahabad High Court.
To this, his lawyer senior advocate Kapil Sibal almost prophetically retorted, “UAPA has been invoked. No court will give bail and the case will go on for years.” On 13 November, almost a month after the Supreme Court hearing, a Mathura sessions court rejected Kappan’s bail plea.
Sibal mentioned Kappan during Goswami’s hearing. “A Kerala journalist was arrested by UP police when he was going to Hathras to report,” said Sibal. “We came to this Court under Article 32. The Court said go to lower court. The petition was posted after four weeks. Such things are also happening.”
This elicited no response from the apex court.
Sibal’s remarks highlighted how the Supreme Court had treated two journalists–one whose case was listed, heard and disposed of in a day – and another who was asked to approach the lower court and whose case was listed for hearing after a month and adjourned again.
Sudha Bharadwaj: Imprisoned For 811 Days
Sudha Bharadwaj, the 60-year-old tribal rights activist and lawyer was arrested on 28 August 2018. Booked under UAPA in what has now come to be known as the Bhima-Koregaon case--one of 16 arrested over the last two years with no trial in sight for what the National Investigation Agency (NIA) has alleged is a vast Maoist conspiracy--no charges have been framed against her.
In August 2020, Article 14 had analysed the gaps in the case against her. Until August 2020, Bharadwaj had been denied bail four times. In August, the Bombay High Court rejected an appeal filed by her from a special NIA Court’s order, which had rejected another bail application made by her on medical grounds.
Bharadwaj suffers from diabetes and other comorbidities. In September 2020, her plea before the Supreme Court sought interim bail on the grounds that she needed to conduct certain medical tests, after which she would surrender herself again.
The court, despite observing that she had a “good case on merits”, refused to grant interim bail. Instead of “exercising its jurisdiction to uphold personal liberty”, it asked her to file a regular bail application.
The Bombay High Court had held that Goswami may approach the Alibag sessions court and apply for regular bail, just as the Supreme Court had suggested that Kappan and Bharadwaj approach lower courts.
Except, in Goswami’s case, the Supreme Court overruled the Bombay High Court judgment and exercised its constitutional duty to protect liberty.
Varavara Rao: Imprisoned For 811 Days
The 81-year-old poet, arrested on the same day as Bharadwaj, continues to remain in jail over two years, in connection with the Bhima Koregaon case.
Despite having contracted Covid-19 and hospitalised, Rao was moved back to prison. Last month, in a plea filed by his wife for temporary release, on the ground that Rao’s health was deteriorating and that his continued confinement violated his right to health, the Supreme Court did not grant him bail.
On 29 October, despite expressing concern about Rao’s bail application not being listed in the Bombay High Court since 17 September, the Supreme Court asked the family to approach the Bombay High Court for relief. It directed that Bombay High Court hear their plea at the earliest.
On 12 November, when the Bombay High Court heard Rao’s bail plea, it ordered a medical inspection, either through video conferencing or in person. When the senior advocate appearing for Rao requested that the matter be listed the next day, the Bench stated that it would not be sitting the next day and listed the case on 17 November.
In contrast, the Bombay High Court conducted a special sitting on a Saturday (7 November 2020) for six hours, a day when the Court would otherwise not hear any matters, to quickly conclude the hearing of arguments in Arnab Goswami’s case.
Like Kappan and Bharadwaj, Rao too has been booked under UAPA, and remains in jail. Article 14 has previously analysed how the UAPA reverses the presumption of innocence under criminal law and perverts the idea of justice.
The Denial Of Liberty To 22 Citizens For 205 Days
On 6 March 2020, the Supreme Court stayed a Karnataka High Court decision granting bail to 22 persons arrested for violence against the police during protests against the Citizenship (Amendment) Act, 2019, on 19 December 2019 in Mangaluru.
The Karnataka High Court, on 17 February 2020, while granting bail to the accused had held:
“The records indicate that deliberate attempt has been made to trump-up evidence and to deprive the liberties of petitioners by fabricating evidence. It is not disputed that none of the petitioners have any criminal antecedents. The allegations levelled against the petitioners are not punishable with death or imprisonment for life. There is no direct evidence to connect the petitioners with the alleged offences. Investigation appears to be mala fide and partisan. In the said circumstances, in order to protect the rights and liberties of the petitioners, it is necessary to admit them to bail.”
When the Supreme Court stayed the High Court’s order, it did not record any reasons. Its order read: “Issue notice. In the meantime, there shall be an ad interim stay of operation of the impugned judgment and order passed by the High Court if the respondents-accused are still in custody.”
Eventually, on 9 September 2020, the Supreme Court granted bail to the 22 accused and upheld the decision of the Karnataka High Court.
Between 17 February and 9 September, the accused remained incarcerated for 205 days. All this, on the basis of an unreasoned order, from the highest court of the land, staying a detailed and well-reasoned (as it turned out) High Court order.
Contrary to its observations during Goswami’s hearing, it was the apex court in this case, and not the High Court, which had “failed to exercise jurisdiction” to protect liberty.
Liberty And Habeas Corpus Petitions
The Supreme Court’s record of handling habeas corpus petitions – designed to keep in check unlawful detentions by the executive – is perhaps most telling, as a September 2020 Article 14 analysis pointed out, quoting a 2020 study by Shrutanjaya Bhardwaj, analysing all 63 reported habeas corpus judgments, pertaining to preventive detention, delivered by the Supreme Court between 2000-2019.
The average time for disposal was just over two years and 7 months; and in 63.5% of the cases, it was more than a year. In 20 “successful” habeas corpus petitions, where the Supreme Court granted relief, it was close to futile on account of delays in 17 cases.
Given that the maximum period of detention is one year under most preventive detention laws, the relief given by the Supreme Court in habeas corpus cases was often moot.
Another 2018 paper by Aparna Chandra, William H.J. Hubbard, and Sital Kalantry, pointed out that the judicial time devoted to habeas corpus cases by the Supreme Court between 2010-2015, was 0.2%. More judicial time was devoted to disputes concerning tuition and admissions in private medical/engineering colleges: 0.8%.
On 13 December 2004, the Supreme Court held: “Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure established by law, a machinery was definitely needed to examine the question of illegal detention with utmost promptitude. The writ of habeas corpus is a device of this nature.”
A 20 August story by this author had pointed out how Mehbooba Mufti’s habeas corpus petition had not been heard for 183 days (at the time that story was written).
In contrast, when Goswami’s habeas writ was rejected by the Bombay High Court and he approached the Supreme Court, his plea was listed, heard and decided the very next day. Mufti’s case was reflective of the plight of the average Kashmiri – who stood no chance – when a former chief minister struggled for her day in court.
“The Path Of Destruction” – Of Personal Liberty
In its unequal protection of personal liberty, the apex court has, in some cases, delegated its constitutional responsibility to the High Courts and other lower courts, and in others, abdicated it.
While hearing Goswami’s bail plea, the Supreme Court observed, “If this court does not interfere today, we are travelling on the path of destruction”. The judiciary is already on this path. Contrary to the apex court’s suggestion, the High Courts treading this path are not alone. The Supreme Court has not just trodden the path but led the way.
The Wire reported a fairly exhaustive list of activists, scholars and journalists who remain incarcerated and whose liberty rests at mercy of the judiciary. Of these, other than the ones discussed here, only a few cases had reached the Supreme Court. The lower courts, deciding the remainder of these cases pertaining to personal liberty, have a less than inspiring role model to emulate in the Supreme Court.
The Supreme Court’s inconsistent approach to cases concerning personal liberty is against the spirit of the constitution and in the select cases where it does protect liberty, it is sans equality.
(Zaid Sufi Wahidi is a practising lawyer at the Bombay High Court.)