“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..” Justice DY Chandrachud in the Supreme Court while granting bail to television anchor, Arnab Goswami on November 11.
Just a day after the admirable principles of ‘personal liberty’ were enunciated by Justice Chandrachud, the Meghalaya high court declined to quash a criminal case against Patricia Mukhim, a senior Shillong-based journalist for her Facebook post about continued attacks on non-tribal people in the state. Mukhim is a well regarded editor but is not a tv celebrity. She does not have a prime time show where she can use the tv studio as a pulpit from where she can harangue and intimidate the world. She is, like thousands of others, a journalist who simply reports and opines on the daily news wheel. She is not a political proxy so an adverse court ruling against her won’t result in a string of supportive tweets from ministers or hashtags by a party’s IT cell. If she were to go to jail tomorrow, there would be scarcely any outrage. Nor would political party workers line up outside the prison when she is released. But as a citizen of this country, she surely has the same fundamental rights to personal liberty as anyone else? As unquestionably do dozens of other less known journalists arrested across the country and often charged with sedition because their writings are inconveniently anti-establishment.
Indeed, it is the selective application of definitions of ‘personal liberty’ that expose the creeping double standards of our judicial system. This, after all, is the same Supreme Court which has repeatedly abdicated its duty when confronted with numerous habeas corpus pleas filed by those imprisoned in Jammu and Kashmir. This is the same court which turned down a petition for bail on medical grounds for lawyer-activist Sudha Bhardwaj while superfluously remarking: “You have a good case on merits. Why don’t you file a regular bail application?” So a Bhardwaj who has been in jail for more than three years is asked to follow due process while the same ‘due process’ is bypassed when the apex court takes up the case on priority basis of a celebrity journalist. This is also the same Supreme court which 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 UP police while on his way to report on the Hathras case. While issuing a notice to the UP government, the court asked why the petitioner had not approached the Allahabad high court for bail instead.
It is the sheer arbitrariness of the judicial interventions in bail petitions that must be questioned: in State of Rajasthan vs Balchand, the Supreme Court laid down the basic rule of bail not jail, while allowing for discretion based on the merits of a case. But surely notions of judicial discretion must be governed by procedural certitude, not based on whim and fanciful posturing. Yes, an abetment to suicide charge that smacks of political vendetta should be bailable, but then shouldn’t the same principle apply when a journalist Prashant Kanojia was arrested by the UP police and kept in jail for two months for retweeting a tweet related to the Ram temple in Ayodhya? No union minister screamed that this was an assault on the free press, no one recalled the Emergency or threatened a street protest. Why should a case involving misuse of state power by the opposition-ruled Maharashtra government be seen as any different to its similar abuse of power in BJP-ruled Uttar Pradesh?
Truth is, responses to bail petitions are often guided by the status of the arrestee and the prevailing partisan political environment. What else explains the manner in which the bail pleas of activists arrested under the UAPA, many of them young students, have been handled by courts across the country? It is almost as if the toxic and highly polarized debate on the Citizens Amendment Act (CAA) has meant that anti-CAA activists are treated as ‘anti-nationals’ or ‘urban naxals’ who must be imprisoned for their dissenting political views.
No case exemplifies the utter hollowness of notions of ‘personal liberty’ than that of Father Stan Swamy, an 83 year old UAPA detenu, arrested last month in the Elgar Parishad case in which several Leftist activists have been arrested for their alleged ‘Maoist links’. Father Swamy who has worked for decades with tribal groups filed a petition in a special court that he be allowed to use a straw and a sipper to drink water as he cannot hold a glass properly because he suffers from Parkinsons 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 to drink water, can there be anything more ludicrous? Earlier, the same court had rejected Father Swamy’s petition for bail on medical grounds.
Now, consider if Father Swamy had been a politician or ‘eminent’ citizen and not a human rights activist. As has been evidenced in several cases, soon after a politician or influential figure is arrested, they get shifted to a hospital or a special facility (in most instances, the excuse given is ‘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 was only when he was found Covid positive that he was temporarily shifted to a hospital and then quickly sent back to jail. What are the chances of an 80 year old poet-activist tampering with evidence or fleeing from justice that he should be denied bail?
Which is why Justice Chandrachud’s fine words need to resonate well beyond his court 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 per cent of prisoners are undertrials. At the end of 2019, more than one lakh people were lodged as undertrials for more than a year. As cases pending judgment pile up, our jails are overcrowded and increasingly unmanageable. Why should those queuing up for bail in petty crime case have to wait for months for a court listing while high-ranking individuals get an urgent hearing even when courts are on recess? The perception of ‘special treatment’ for the privileged is against the fundamental constitutional principle of equal citizenship. A tv anchor’s personal liberty is no greater than that of an aam aadmi or aurat.
Post-script: Prime time tv studios of the ‘noise’ channels have been converted into 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 and no hard evidence, the screeching headline was: “When will Rhea be arrested!’ Would those news channels now apply the same rules to themselves?
