Deprivation of liberty even for a single day is one day too many.” Nearly a year ago, reproaching the Bombay High Court for denying bail to TV anchor Arnab Goswami, Supreme Court Justice D Y Chandrachud had unambiguously stated the principle which courts must uphold in order to remain the “first line of defence” of the liberty of citizens. He was also reaffirming what the highest court of the land had said earlier: That “bail, not jail” must be the judiciary’s reflex; that the process must not descend into punishment. That the accused — innocent till proven guilty — must not be consigned to long stints in prison when they pose no danger of influencing the investigation, or escape.
But the refusal of a special court to grant bail to Aryan Khan, son of actor Shah Rukh Khan, raises the question: Why is it that, despite such clear guidelines, the lower courts, more often than not, give the benefit of the doubt to the prosecution and the state? Of course, Khan’s innocence or lack of it must be established through due process. The 23-year-old was detained by the Narcotics Control Bureau in a drug bust on a cruise ship even though no drugs were found in his possession, he has no previous history of crime or drug abuse, and no blood test was carried out. The NDPS Act distinguishes between a drug consumer and peddler, and forbids treating the former as hardened criminals. The NCB, however, seems not to have made crucial distinctions, and has charged all those arrested in this case of “conspiracy” under a harsher provision of the law (Section 29).
If there was any lesson from the public ordeal of actor Rhea Chakraborty last year, similarly accused by the NCB on the basis of WhatsApp chats, eventually amounting to little, it was this: There is a line between the pursuit of justice and headline-hunting through high-profile cases — and the NCB appears to not know the difference. In Chakraborty’s case, which spun off from a web of conspiracy theories surrounding the suicide of actor Sushant Singh Rajput and which set off a toxic media coverage, the NCB had brought a grave charge against the actor. She was charged under Section 27 A of the NDPS Act, which accused her of being involved in “financing” drugs. The Bombay High Court, while granting her bail last year, rejected the NCB’s charges as “highly disproportionate” and “extremely unreasonable”. The court also rejected the prosecution’s argument that “celebrities” be treated harshly and made an example of, saying that no actor must “incur any special liability” in the eyes of the law.
At a time when a powerful executive does not shrink from using investigative agencies or harsh laws as weapons, the judiciary’s reluctance to stand up for personal liberty has costs — for an Aryan Khan or a Rhea Chakraborty, or the legions of less privileged languishing in prisons or in the many habeas corpus cases that have seen unconscionable delay. “The writ of liberty runs through the fabric of the Constitution,” Justice Chandrachud had said. If only the spirit behind his words runs down the judiciary as well.
This editorial first appeared in the print edition on October 23, 2021 under the title ‘Lowering the bar’.