Bail for some, jail for others: Understanding the skewed reasoning of the apex court's judicial process

On 11 November, the Supreme Court intervened to grant bail to Republic TV anchor Arnab Goswami. The bench was perhaps right in so doing on two counts. First, abetment to suicide is a dodgy plaint. Second, bail, as the top court has observed, should be the norm, not the exception.

Having said that, one must look at the rhetoric employed in the verdict. The word 'rhetoric' is being used advisedly, because its loud strains sound like oratory – in context. The bench said high courts were not protecting the "personal liberty of citizens", a judicial trajectory that signified a "travesty of justice". This, it also said, meant that "we are travelling (on) the path of destruction".

The top court also questioned the need for preemptive arrest. In 2011, it had directed lower courts not to send accused persons to jail before conviction.

Related Articles

Delhi HC issues summons to BBC in defamation suit over Modi documentary

Cabinet approves Rs 1 lakh crore scheme to increase grain storage in cooperative sector

"The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty," a Supreme Court bench had said in 2011. This position has since been iterated.

In normal circumstances, this reiteration should have given Indian citizens abundant reason to celebrate. Unfortunately, this libertarian principle is being followed selectively. The problem is not that high courts, as the bench observed, are indifferent to the fundamental rights of citizens. The problem is that the supreme appellate court has for the past few years been remiss in fulfilling its role in protecting fundamental rights – especially in respect of habeas corpus petitions and, thus, the personal liberty of citizens.

While it is encouraging that the grant of bail has been prioritised in some cases, a number of other journalists are languishing in prison, with the top court doing little about their plight.

The Kashmir Valley has seen a draconian suppression of press freedom. Aasif Sultan was the first to be booked, even before the special status of the erstwhile state of Jammu and Kashmir was revoked. He has been in jail for considerably over two years. Aasif was arrested under provisions of the Unlawful Activities (Prevention) Act, the police say, because he had links with militants. The police are nowhere near proving this claim. No court has given him bail. The first hearing in the case was held on 9 November this year.

A number of other journalists who were arrested – Gowhar Wani, Gowhar Geelani, Peerzada Ashiq, Qazi Shibli, among others. Some were granted bail precisely by the courts the Supreme Court bench assailed.

Siddique Kappan, a journalist from Kerala, was arrested while on his way to meet the survivors of the horrific Hathras gangrape and murder case. That was over a month ago. He continues to be in jail without overly troubling the libertarian conscience of the Supreme Court, which can, one presumes, take suo motu cognisance of the arrest and grant bail.

In accordance with its own 2011 strictures, the Supreme Court can even cancel the arrest pending investigation.

Let us cut to the Elgar Parishad case. To recapitulate, a couple of meetings were held in Pune on 31 December 2017, under the aegis of a body called the Elgar Parishad, which numbers amongst its ranks retired judges. The meetings featured speeches and performances highlighting the need for greater protection of Dalit communities and criticism of the Sangh Parivar. They passed off peacefully.

The next day, Dalits congregated at Bhima-Koregaon village nearby to celebrate the bicentennial of a victory for a Mahar (a Dalit community) regiment in a battle against the Brahmanical Peshwas, then the keepers of the Maratha Empire. The celebrants were attacked by members of the Sangh Parivar. Riots broke out throughout Maharashtra. Initially, two Hindutva activists were nailed in police investigations. One, Milind Ekbote, was arrested after Supreme Court strictures, and the other, Sambhaji Bhide, was never questioned.

This investigation was soon abandoned in favour of a hunt for ‘urban Naxals’. As of now, 15 people have been arrested for links with the CPI (Maoists). Among them are academics, lawyers and cultural activists. What is common to them is that they are all people who have worked for Dalit rights and empowerment. Two of those arrested are ailing octogenarians who have been denied bail – one for a few weeks and the other for over a year. The other 13 activists have been in jail for periods ranging from upward of two years to a few weeks. Bail has been sought and denied.

The Supreme Court itself was petitioned by historian Romila Thapar and others to dismiss the case. It rejected the plea. That can be interpreted as a judgement on the merits of the case. But the consistent denial of bail to the accused hardly chimes with the lofty pronouncements of the bench, which in the Goswami case consisted of Justices DY Chandrachud and Indira Banerjee. Justice Chandrachud had, in all conscience, dissented from the majority verdict rejecting Thapar’s plea.

Let us now get to the summary arrests of people who had been protesting against the Citizenship (Amendment) Act (CAA), 2019. In the wake of the Delhi riots in February this year, a substantial number of people have been arrested. Many of them are people who had been protesting against the CAA and the National Register of Citizens.

None of the people who instigated the riots, most notably Bharatiya Janata Party (BJP) leader Kapil Mishra, were booked, charged, or arrested. Nor were BJP leaders, including Union minister of state for finance Anurag Thakur, who led the chant “Desh ke gaddaron ko, goli maaron salon ko” during the campaigning for the Delhi elections.

Some of the activists arrested have been granted bail, after much head-scratching. One of them, Safoora Zargar, was arrested in April when she was three months into her pregnancy. She was granted bail two months later — due to medical complications – by the Delhi High Court.

The purpose of recounting these details and examining the rhetoric of the Supreme Court is to point to this: the judiciary finds a parallel in the behaviour of its forebears during the time Prime Minister Indira Gandhi enforced her infamous Emergency.

Views expressed are personal