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Wednesday, December 02, 2020

Lower courts must heed the apex court’s words on personal liberties and free speech

It is earnestly hoped that the concerned courts will heed the advice of the Supreme Court and pass appropriate orders in deserving cases — and not go by the label of the charges.

Written by Rekha Sharma | Updated: November 17, 2020 8:47:18 am
No one holds any brief for Rhea Chakraborty or Goswami insofar as the merits of the two cases are concerned. The power to pronounce them guilty or innocent rests with the courts and no one else.

As you sow, so shall you reap is an old adage which holds true for Arnab Goswami, editor-in-chief of Republic TV. Goswami, who went hammer and tongs at actor Rhea Chakraborty, accusing her of being a member of drug mafia and abetting the suicide by Sushant Singh Rajput, cried foul when he was arrested from his residence for allegedly abetting the suicide committed by an architect Anvay Naik. In a suicide note recovered from the spot where Naik was found dead, he had alleged that Goswami and two others, namely Feroz Sheikh and Niteish Sarda, owed him substantial sums of money, and on account of non-payment by them, he and his mother were driven to commit suicide. Although an FIR was registered against all three, it ended with the police submitting “a summary report” in the concerned court, which means that the investigation did not throw up sufficient evidence against the accused. Naik’s wife and daughter alleged that they were not informed about the closure report and it is only after they came to know of it that they ran from pillar to post, which resulted in the re-investigation of the case and the arrest of Goswami.

No one holds any brief for Rhea Chakraborty or Goswami insofar as the merits of the two cases are concerned. The power to pronounce them guilty or innocent rests with the courts and no one else. Unfortunately, a few TV channels have arrogated to themselves the role of judge, jury and executioner. Chakraborty is yet to be pronounced guilty or innocent by a court of competent jurisdiction, but she already stands convicted in the court of Goswami, which he conducts every night.

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Goswami has since been released from jail on the order of the Supreme Court. However, the order granting bail to him has evoked mixed reactions. Many in the legal fraternity feel that Goswami has been receiving preferential treatment in the matter of listing of his cases, while many others who were placed far worse, when Goswami came rushing to the Supreme Court against the Bombay High Court order declining interim bail to him, are languishing in jail, waiting for their turn to be heard in the Supreme Court. This feeling has been echoed by none other than the president of the Supreme Court Bar Association, Dushyant Dave. In a scathing letter to the secretary-general of the Supreme Court, Dave has alleged that the SC registry has been selectively listing matters, even when the system is supposedly computerised. According to the records available with the SC registry, Goswami’s petition reportedly had nine defects, and even the vakalatnama was unsigned, yet it was listed on the day following its filing. Dave had requested that his letter be placed before the bench scheduled to hear the matter. We do not know whether the letter was placed before the bench, and if so, whether it passed any order on the same, or simply ignored it.

It may be recalled that before Dave, Justice Deepak Gupta of the Supreme Court on his retirement had also spoken of the priority or lack of it being accorded to certain cases in the matter of listing. Justice Gupta said he had seen cases involving big money and fancy law firms being listed in four weeks, while those involving junior lawyers not being listed even after six months. Given the fact that two eminent voices have struck discordant notes about the functioning of the registry, it is high time that the Supreme Court pays attention. It must dispel the impression that the registry is being managed, and some people are treated more equal than others. In order to get to the bottom of the malaise, will the Supreme Court, in my humble view, direct the registry to furnish information about how many bail and habeas corpus petitions were filed during the last 24 months, with the date of their filing? When were they first taken up for hearing and what was the date of their disposal? How many of them were under objections and were taken up without removal of objections? The registry is bound to supply this information as a consumer of justice is entitled to have this information.

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The redeeming feature of the bail order is the emphasis that the Supreme Court has laid on the personal liberty of individuals and made observations to the effect that state governments are targeting individuals on the basis of ideology and differences of opinion. The Supreme Court has also said, “that if constitutional courts do not interfere today then we are traveling the path of destruction. We must send a message to the High Courts today that please exercise your jurisdictions to uphold liberty”. These words by the Supreme Court are highly reassuring to all those who feel that an individual’s right to freedom of speech and expression is under threat as never before. It has kindled hope in the hearts of many languishing in jail precisely for the reasons noticed by the Supreme Court. Notable amongst them is 81-year-old Telugu poet Varavara Rao and activist Sudha Bhardwaj, who are in custody since August 2018 in the Elgar Parishad case. They have repeatedly pleaded for bail on medical grounds but are being denied the same. Recently, a Kerala journalist was arrested by the UP police on October 5 under Unlawful Activities (Prevention) Act when he was on his way to Hathras to cover the gang rape of a 19-year-old Dalit woman. Besides, social activists, students in the wake of agitation against CAA, and many others consequent to abrogation of Article 370 are behind bars on trumped up charges under the draconian sedition law or UAPA.

It is earnestly hoped that the concerned courts will heed the advice of the Supreme Court and pass appropriate orders in deserving cases — and not go by the label of the charges.

This article first appeared in the print edition on November 17, 2020 under the title ‘Listen to the Supreme Court’. The writer is a former judge of the Delhi High Court

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