Bail for K Kavitha: Without personal liberty, all other rights are meaningless

Similarly, in the case of Manish Sisodia v Directorate of Enforcement, the Court noted that trial and high courts in matters of bail attempt to “play safe” and “the principle that bail is a rule and refusal is an exception is, at times, followed in breach.” Like in Sisodia’s case, who had been in jail for 17 months, in Sheikh Javed Iqbal v State of Uttar Pradesh, the accused was detained by the Anti-Terrorist Squad since 2015 and was also charged under the UAPA. The SC held that every accused has the right to a speedy trial and bail cannot be denied solely on the ground that the offences are serious in nature. Relying on its previous judgments, the Court emphasised that the period of custody undergone and the likely time within which trial will be concluded must be borne in mind when freedom is at stake.

Applying the same reasoning, in K Kavitha v Central Bureau of Investigation, the Court went on to observe that when investigation is complete and chargesheet and prosecution complaint has been filed then custodial interrogation of the accused, who has been behind bars for over five months, is no longer necessary. Questioning the fairness of prosecution agencies, the Court also raised concerns about the evidentiary value of a co-accused’s statement implicating Kavitha and observed that the “approvers statements also need corroboration”.

Not only in bail cases, even on procedural matters, the Supreme Court, in recent times, has championed progressive ideas of the rule of law and provided relief. In the case of Pankaj Bansal v Union of India the Court held that an accused must receive in writing the written grounds of arrest. In Prabir Purkayashta v State (NCT of Delhi), the Court noted that when grounds for remand were only supplied once the order for remanding the accused to further custody was passed, the arrest and remand was in violation of Articles 21 and 22 (person arrested to be informed about grounds for arrest, have the right to legal counsel and be produced before magistrate within 24 hours).

Along similar lines, in Arvind Kejriwal v Directorate of Enforcement, the Court while referring the question of whether “need and necessity of arrest” is a separate ground to challenge the arrest under the Prevention of Money Laundering Act to a larger bench, granted Kejriwal interim bail. The Court observed that the power of arrest is not unbridled and the “necessity” to make an arrest should be considered by police before making an arrest.

All these judgments and other recently passed verdicts advance personal liberty and strike down excessive executive action. It can’t be overlooked that many of these decisions, authored by judges who are in-line to be the Chief Justice of India, come on the back of the recent electoral results which have significantly changed political equations. As the puisne Judge of the Supreme Court said, upon his retirement some months ago, “when there is a strong executive, there will be a little pushback for the judiciary.” He went on to say that, from the 1990s, when the era of coalition government began, the judiciary was able to advance its cause, but with majority governments, even the judiciary was required to take some steps back.

This is because elected representatives don’t like anybody to interfere with executive action even when the constitutional scheme entrusts the judiciary with the powers of check and balance. This apparent tension is dubbed by law professor Alexander Bickel, as the “counter-majoritarian difficulty”. This concept assumes that there is always a tussle between the judiciary and the executive as the judiciary consists of unelected judges who decide the fate of legislations promulgated by elected representatives. Bickel named it “counter-majoritarian” as it runs counter to “will of the majority”, especially when the judiciary bends down to the “will of the people”.

These assumptions were countered by another law professor by contending that “when the court is acting during a time of perceived (and actual) judicial supremacy, counter-majoritarian criticism will flourish”. In contrast, as political scientists note, during populist governments, the judiciary’s powers get eroded and these gradual assaults result in a situation where judges become less likely to rule against unified governments to protect themselves against incumbent attacks.

In India, the SC’s recent decisions, aside from applying established constitutional principles, are also in sync with prevailing opinion and citizen expectations. There is enduring public support for courts and wide acceptance of their authority. Considered in this background, these recent pronouncements highlight the paramountcy of individual freedom and the need for all courts in the judicial hierarchy to recognise this and apply it to the cases before them. A clear message has also been delivered that all courts exercising discretion must do so judiciously and not be swayed either by the parties involved or the charges levelled. After long, the Court is speaking in unison and the voice of liberty is ringing loud through the hallowed corridors of the Supreme Court where unjust impingement on citizens’ rights is finding no place. Nothing must eclipse this because personal liberty must triumph under all socio-politico conditions. Only then is the spirit of our Constitution truly achieved.

The writer is a senior advocate in New Delhi