Historic Supreme Court order on human liberty and the role of Courts

Shivani Bhardwaj

New Delhi: The Supreme Court of India on Friday 27 November has passed a historic order to uphold personal liberty in the Arnab Goswami case observing “The doors of the apex 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 defense 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“.

The Supreme Court, in its order passed by the two Judge bench of Justice Dhananjaya Y Chandrachud and Justice Indira Banerjee, says: “Human liberty is a precious constitutional value, which is undoubtedly subject to regulation by validly enacted legislation. As such, the citizen is subject to the edicts of criminal law and procedure.”

The order further says, Section 482 recognizes the inherent power of the High Court to make such orders as are necessary to give effect to the provisions of the CrPC ― or prevent abuse of the process of any Court or otherwise to secure the ends of justice. Decisions of this court require the High Courts, in exercising the jurisdiction entrusted to them under Section 482, to act with circumspection. In emphasising that the High Court must exercise this power with a sense of restraint, the decisions of this Court are founded on the basic principle that the due enforcement of criminal law should not be obstructed by the accused taking recourse to artifices and strategies. The public interest in ensuring the due investigation of crime is protected by ensuring that the inherent power of the High Court is exercised with caution. That indeed is one – and a significant – end of the spectrum. The other end of the spectrum is equally important: the recognition by Section 482 of the power inherent in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty. The Code of Criminal Procedure of 1898 was enacted by a legislature which was not subject to constitutional rights and limitations; yet it recognized the inherent power in Section 561A. Post-Independence, the recognition by Parliament of the inherent power of the High Court must be construed as an aid to preserve the constitutional value of liberty.

The writ of liberty runs through the fabric of the Constitution, the order asserts adding 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.

In the Arnab Goswami case, the Supreme Court has said in its order that 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.

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, the apex Court has said: “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. Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum – the district judiciary, the High Courts and the Supreme Court – to ensure that the criminal law does not become a weapon for the selective harassment of citizens. 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. 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.”

Observing that Kapil Sibal, Amit Desai and Chander Uday Singh were “undoubtedly right in submitting that the procedural hierarchy of courts in matters concerning the grant of bail needs to be respected, the Supreme Court has emphasised, 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 High Court did have the power to protect the citizen by an interim order in a petition invoking Article 226. 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 defense 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.

Further the Supreme Court has said It would be apposite to extract the observations made, albeit in a
dissenting opinion, by Justice Dhananjaya Y Chandrachud, in a decision of a three judge bench in Romila Thapar vs Union of India: “The basic entitlement of every citizen who is faced with allegations of criminal wrongdoing, is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the
right to life and personal liberty under Article 21. If this Court were not to stand by the principles which we have formulated, we may witness a soulful requiem to liberty.”

The decision in this matter was a dissent in the facts of the case. The view of the leading majority judgment is undoubtedly the view of the court, which binds us. However, the principle quoted in the present order is in line with the precedents of this court, it has been observed by the apex Court.

While reserving the judgment at the conclusion of arguments, the Supreme Court had directed the release of all the three appellants on bail pending the disposal of
the proceedings before the High Court. The following operative directions were issued on 11 November 2020:

“We are of the considered view that the High Court
was in error in rejecting the applications for the grant of
interim bail. We accordingly order and direct that Arnab
Manoranjan Goswami, Feroz Mohammad Shaikh and Neetish Sarda shall be released on interim bail, subject to each of them executing a personal bond in the amount of Rs 50,000 to be executed before the Jail Superintendent. They are, however, directed to cooperate in the investigation and shall not make any attempt to interfere with the ongoing investigation or with the witnesses.

The concerned jail authorities and the Superintendent
of Police, Raigad were directed to ensure that the apex Court order is complied with forthwith.

Click for Supreme Court order

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