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Monday, July 26, 2021

Depriving liberty even for 1 day is one too many: SC

Top court extends interim bail to Arnab, pulls up Bombay HC.

Written by Ananthakrishnan G | New Delhi |
Updated: November 28, 2020 2:51:58 am
arnab goswami, arnab goswami bail, arnab goswami released from jail, arnab goswami anticipatory bail, arnab goswami mumbai police assaultGoswami, who was arrested on November 4, was released from the Taloja prison in Navi Mumbai late Wednesday evening.

THE SUPREME Court on Friday said that “deprivation of liberty even for a single day is one day too many” and courts across the country “must ensure that they continue to remain the first line of defence against the deprivation of the liberty of citizens”. The court made the observation as it pulled up the Bombay High Court for the manner in which it handled the plea of Republic TV editor-in-chief Arnab Goswami in an abetment to suicide case.

Extending the interim bail it allowed to the journalist and two others on November 11, a bench of Justices D Y Chandrachud and Indira Banerjee said courts “should be alive to… the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment”.

Writing for the bench, Justice Chandrachud said: “Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting.”

Goswami had earlier moved the High Court, seeking quashing of the FIR against him in connection with the 2018 suicide of architect-interior designer Anvay Naik. and seeking interim bail. On November 9, a High Court bench of Justices S S Shinde and M S Karnik rejected the plea following which the journalist approached the Supreme Court.

Taking serious exception to the High Court order, the Supreme Court on Friday said: “Whether the appellant has established a case for quashing the FIR is something on which the High Court will take a final view when the proceedings are listed before it but we are clearly of the view that in failing to make even a prima facie evaluation of the FIR, the High Court abdicated its constitutional duty and function as a protector of liberty.”

“The High Court could not but have been cognizant of the specific ground which was raised before it by the appellant that he was being made a target as a part of a series of occurrences which have been taking place since April 2020. The specific case of the appellant is that he has been targeted because his opinions on his television channel are unpalatable to authority,” it said.

“There was a failure of the High Court to discharge its adjudicatory function at two levels – first in declining to evaluate prima facie at the interim stage in a petition for quashing the FIR as to whether an arguable case has been made out, and secondly, in declining interim bail, as a consequence of its failure to render a prima facie opinion on the first,” the Supreme Court said.

The High Court, it said, “did have the power to protect the citizen by an interim order in a petition invoking Article 226”.

The bench said: “Where the High Court has failed to do so, this Court would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met. 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 defence 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,” it said.

“Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment.”

Dwelling on the importance of liberty, Justice Chandrachud wrote: “Human liberty is a precious constitutional value, which is undoubtedly subject to regulation by validly enacted legislation.”

“The writ of liberty runs through the fabric of the Constitution. The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower courts in this country must be alive.”

Recalling that “bail, not jail” is the basic rule of the country’s criminal justice system, the Supreme Court asked high courts and district courts to “enforce this principle in practice, and not forego that duty, leaving this Court to intervene at all times”.

“We must in particular also emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the subordinate judiciary. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them,” it said.

“High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence 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,” it said.

“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 loquent expression. The remedy of bail is the ? solemn expression of the humaneness of the justice system. Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form.”

The court said it had given expression to its anguish in a case where a citizen has approached this court. “We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard,” it said, and pointed out that as per data 91,568 bail applications were pending before various High Courts and 1,96,861 in district courts.

“Liberty is not a gift for the few”, the bench said, and called upon administrative judges in charge of districts to monitor pendency, saying the data “makes clear, there is a pressing need for courts across the judicial hierarchy in India to remedy the institutional problem of bail applications not being heard and disposed of with expedition”.

In Goswami’s case, the Supreme Court said, “Prima facie, on the application of the test which has been laid down by this Court in a consistent line of authority… it cannot be said that the appellant was guilty of having abetted the suicide within the meaning of Section 306 of the IPC.” The judgment, however, added that “these observations… are prima facie at this stage since the High Court is still to take up the petition for quashing”.

The apex court said the interim bail granted to Goswami will continue till the High Court disposes of the matter and that it will continue for four more weeks thereafter “should it become necessary for all or any of them to take further recourse to their remedies in accordance with law”.

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