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India Rule of Law

Is Personal Liberty in India available to all?

As the top court granted bail to Arnab Goswami, upholding his personal liberty, some Indians continue to be State targets

Sabrangindia 30 Nov 2020

Image Courtesy:india.com

Republic TV Editor-in-Chief, Arnab Goswami was released on bail on November 11 as the top court Bench of Justices DY Chandrachud and Indira Banerjee said that prima facie it could not be held that Goswami had abetted the suicide of Anvay Naik.

The Bench said, “Prima facie, on the application of the test which has been laid down by this Court in a consistent line of authority which has been noted above, it cannot be said that the appellant was guilty of having abetted the suicide within the meaning of Section 306 of the IPC.”

He was arrested on November 4 by Mumbai Police for his alleged role in the suicide of an interior designer Anvay Naik. In the suicide note left behind, he named Arnab and two others for not paying him his due. (Rs 83 lacs)

SC’s observation

The Bench battled in favour of ‘Personal Liberty’ while granting him bail. They lamented that the High Court abdicated its role in establishing whether or not there was a prima facie case under Section 306 of the Indian Penal Code (abetment to suicide) against the journalist. The Bombay High Court on November 9 had refused to grant him interim bail. Here are some significant excerpts from the apex court judgment: 

“The striking aspect of the impugned judgment of the High Court spanning over fifty-six pages is the absence of any evaluation even prima facie of the most basic issue. The High Court, in other words, failed to apply its mind to a fundamental issue which needed to be considered while dealing with a petition for quashing under Article 226 of the Constitution (High Court’s power to issue writs, orders, directions) or Section 482 of the CrPC (inherent powers of the High Court)”.

“Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum – the district judiciary, the High Courts and the Supreme Court – to ensure that the criminal law does not become a weapon for the selective harassment of citizens.”

“The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.”

The consequences for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector.

As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the ―solemn expression of the humaneness of the justice system.”

Reach of Personal Liberty

While the Supreme Court’s relentless pursuit of personal liberty abets freedom, the real question is, if the lower courts are heeding this. Getting justice in the legal system is a matter of luck. There are many other isolated instances of liberty slipping away from the cracks of institutional apathy.

Safoora Zargar, who is out on bail now, was denied that relief by a Delhi Court when she was 21 weeks pregnant on charges of alleged conspiracy of blocking the roads (chakka jam) that led to the North East Delhi riots in February, 2020. (State v Safoora Zargar Bail App No. 1119 of 2020).

Justice Dharmendra Rana while noting that even if there was no direct violence that could be attributed to Safoora said, “When you choose to play with embers, you cannot blame the wind to have carried the spark a bit too far and spread the fire.”

The arrest and judicial custody of Kerala Journalist Siddique Kappan, having the Journalist Union’s application to meet Siddique in Mathura Jail rejected by the Chief Judicial Magistrate, Mathura, getting to finally interact with his lawyer after almost 50 days in custody is not the perfect example of personal liberty.

Jailed lawyer and human rights defender Sudha Bharadwaj celebrated her birthday in Byculla Jail, Mumbai for the third straight year. She continues to languish in jail with several medical problems developed in the course of her incarceration, with no charges framed against her.

It took disconcerting neurological test reports, delirium, one trip to JJ hospital, injury to his head against a hospital bed, for the Bombay High Court to comprehend the critical medical condition of Varavara Rao. When the High court directed his immediate hospitalisation it also observed that he was almost on his ‘death bed’.

Even though the Supreme Court directed the High Court to list his bail plea at the earliest, noting that every inmate’s health is important, the High Court failed to do so. During his bail plea hearing, the prosecution argued that he could be released from Taloja Jail but this should be treated as a special case and ‘not a precedent’. Prisons are a state subject and therefore the upkeep of every inmate, is the responsibility of the state. Not treating this as a strong precedent is dangerous, especially when backed by judicial power.

When Arnab’s bail plea is listed within 24 hours of filing and an 83-year-old Parkinson’s inflicted Jesuit Priest has to wait for a month for the State to respond to his plea for a sipper mug, the trend of enabling internal disparity through fractured judicial functioning reveals itself. Giving judicial form to such atrocities and blatant discrimination leaves very little meaning for personal liberty.

There are hundreds detained in Kashmir prisons after Article 370 abrogation, booked under Public Safety Act. Activists, students have continued to remain in cells despite having been granted bail under IPC, Arms Act and Property Damage Act. This is because of the stringent UAPA charges. The Supreme Court, in Bikramjit Singh vs State of Punjab (Crl. App. No. 667 of 2020) while dealing with a matter where the accused (charged under UAPA) was denied a plea to default bail said, “We must not forget that we are dealing with the personal liberty of an accused under a statute which imposes drastic punishments.” But it still lacks strict application.

Prolonged incarceration in jails without trial is the highest form of depravity of a citizen’s liberty. Where the Division Bench has managed to uphold the rights and liberties of Arnab Goswami it has failed to see all citizens equal before the law.

Justice Chandrachud had rightfully remarked that, “If constitutional courts do not interfere today, then we are travelling the path of destruction, undeniably. We must send a message to the High Court’s today that please exercise your jurisdiction to uphold personal liberty.”

This statement is very reassuring for people who have been victimised by the State. The very same State who see dissenters, free speech advocates, non-conformists from the prism of anti-national enemies. But the constitutional courts can only interfere when citizens have a free pass to approach the court through Article 32.

CJI SA Bobde’s remark “We are trying to discourage Article 32 petitions”, made while hearing a matter pertaining to Siddique Kappan’s release, makes justice sound very selective. It is hardly surprising when B.R Ambedkar called Article 32 as the heart and soul of the Constitution because it entails the idea of fundamental right to Constitutional remedies.  It protects the right of a person to approach the constitutional courts like the Supreme Court and other high courts, against the violation of any fundamental right.  

In addition to Babasaheb’s remarks, the courts have also time and again held that Article 32 is an integral and essential feature of the Constitution and constitutes its basic structure (L Chandra Kumar vs Union of India 1997 (3) SCC 261).

“The Judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations”, held the 5 judge Bench of the Supreme Court.

In the past months where the State machinery has been used as a tool of oppression, there is no place for law to be manipulated by Judges the same way.

The SC order may be read here: 

Related:

Republic TV editor Arnab Goswami arrested in 2018 suicide abetment case
Arnab’s plea listed urgently in SC, Dushyant Dave alleges preferential treatment
We are trying to discourage Article 32 petitions: Chief Justice of India

 

Is Personal Liberty in India available to all?

As the top court granted bail to Arnab Goswami, upholding his personal liberty, some Indians continue to be State targets

Image Courtesy:india.com

Republic TV Editor-in-Chief, Arnab Goswami was released on bail on November 11 as the top court Bench of Justices DY Chandrachud and Indira Banerjee said that prima facie it could not be held that Goswami had abetted the suicide of Anvay Naik.

The Bench said, “Prima facie, on the application of the test which has been laid down by this Court in a consistent line of authority which has been noted above, it cannot be said that the appellant was guilty of having abetted the suicide within the meaning of Section 306 of the IPC.”

He was arrested on November 4 by Mumbai Police for his alleged role in the suicide of an interior designer Anvay Naik. In the suicide note left behind, he named Arnab and two others for not paying him his due. (Rs 83 lacs)

SC’s observation

The Bench battled in favour of ‘Personal Liberty’ while granting him bail. They lamented that the High Court abdicated its role in establishing whether or not there was a prima facie case under Section 306 of the Indian Penal Code (abetment to suicide) against the journalist. The Bombay High Court on November 9 had refused to grant him interim bail. Here are some significant excerpts from the apex court judgment: 

“The striking aspect of the impugned judgment of the High Court spanning over fifty-six pages is the absence of any evaluation even prima facie of the most basic issue. The High Court, in other words, failed to apply its mind to a fundamental issue which needed to be considered while dealing with a petition for quashing under Article 226 of the Constitution (High Court’s power to issue writs, orders, directions) or Section 482 of the CrPC (inherent powers of the High Court)”.

“Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum – the district judiciary, the High Courts and the Supreme Court – to ensure that the criminal law does not become a weapon for the selective harassment of citizens.”

“The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.”

The consequences for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector.

As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the ―solemn expression of the humaneness of the justice system.”

Reach of Personal Liberty

While the Supreme Court’s relentless pursuit of personal liberty abets freedom, the real question is, if the lower courts are heeding this. Getting justice in the legal system is a matter of luck. There are many other isolated instances of liberty slipping away from the cracks of institutional apathy.

Safoora Zargar, who is out on bail now, was denied that relief by a Delhi Court when she was 21 weeks pregnant on charges of alleged conspiracy of blocking the roads (chakka jam) that led to the North East Delhi riots in February, 2020. (State v Safoora Zargar Bail App No. 1119 of 2020).

Justice Dharmendra Rana while noting that even if there was no direct violence that could be attributed to Safoora said, “When you choose to play with embers, you cannot blame the wind to have carried the spark a bit too far and spread the fire.”

The arrest and judicial custody of Kerala Journalist Siddique Kappan, having the Journalist Union’s application to meet Siddique in Mathura Jail rejected by the Chief Judicial Magistrate, Mathura, getting to finally interact with his lawyer after almost 50 days in custody is not the perfect example of personal liberty.

Jailed lawyer and human rights defender Sudha Bharadwaj celebrated her birthday in Byculla Jail, Mumbai for the third straight year. She continues to languish in jail with several medical problems developed in the course of her incarceration, with no charges framed against her.

It took disconcerting neurological test reports, delirium, one trip to JJ hospital, injury to his head against a hospital bed, for the Bombay High Court to comprehend the critical medical condition of Varavara Rao. When the High court directed his immediate hospitalisation it also observed that he was almost on his ‘death bed’.

Even though the Supreme Court directed the High Court to list his bail plea at the earliest, noting that every inmate’s health is important, the High Court failed to do so. During his bail plea hearing, the prosecution argued that he could be released from Taloja Jail but this should be treated as a special case and ‘not a precedent’. Prisons are a state subject and therefore the upkeep of every inmate, is the responsibility of the state. Not treating this as a strong precedent is dangerous, especially when backed by judicial power.

When Arnab’s bail plea is listed within 24 hours of filing and an 83-year-old Parkinson’s inflicted Jesuit Priest has to wait for a month for the State to respond to his plea for a sipper mug, the trend of enabling internal disparity through fractured judicial functioning reveals itself. Giving judicial form to such atrocities and blatant discrimination leaves very little meaning for personal liberty.

There are hundreds detained in Kashmir prisons after Article 370 abrogation, booked under Public Safety Act. Activists, students have continued to remain in cells despite having been granted bail under IPC, Arms Act and Property Damage Act. This is because of the stringent UAPA charges. The Supreme Court, in Bikramjit Singh vs State of Punjab (Crl. App. No. 667 of 2020) while dealing with a matter where the accused (charged under UAPA) was denied a plea to default bail said, “We must not forget that we are dealing with the personal liberty of an accused under a statute which imposes drastic punishments.” But it still lacks strict application.

Prolonged incarceration in jails without trial is the highest form of depravity of a citizen’s liberty. Where the Division Bench has managed to uphold the rights and liberties of Arnab Goswami it has failed to see all citizens equal before the law.

Justice Chandrachud had rightfully remarked that, “If constitutional courts do not interfere today, then we are travelling the path of destruction, undeniably. We must send a message to the High Court’s today that please exercise your jurisdiction to uphold personal liberty.”

This statement is very reassuring for people who have been victimised by the State. The very same State who see dissenters, free speech advocates, non-conformists from the prism of anti-national enemies. But the constitutional courts can only interfere when citizens have a free pass to approach the court through Article 32.

CJI SA Bobde’s remark “We are trying to discourage Article 32 petitions”, made while hearing a matter pertaining to Siddique Kappan’s release, makes justice sound very selective. It is hardly surprising when B.R Ambedkar called Article 32 as the heart and soul of the Constitution because it entails the idea of fundamental right to Constitutional remedies.  It protects the right of a person to approach the constitutional courts like the Supreme Court and other high courts, against the violation of any fundamental right.  

In addition to Babasaheb’s remarks, the courts have also time and again held that Article 32 is an integral and essential feature of the Constitution and constitutes its basic structure (L Chandra Kumar vs Union of India 1997 (3) SCC 261).

“The Judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations”, held the 5 judge Bench of the Supreme Court.

In the past months where the State machinery has been used as a tool of oppression, there is no place for law to be manipulated by Judges the same way.

The SC order may be read here: 

Related:

Republic TV editor Arnab Goswami arrested in 2018 suicide abetment case
Arnab’s plea listed urgently in SC, Dushyant Dave alleges preferential treatment
We are trying to discourage Article 32 petitions: Chief Justice of India

 

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