Last week, The Mumbai Police arrested Republic TV editor Arnab Goswam with an old charge on abetment of suicide. The Bombay High Court refused to grant him interim bail because its views were prima facie. Later, Goswami filed a regular bail application before the Alibaug sessions court on Monday, seeking his release from judicial custody. The journalist asserted that the Maharashtra Government and Police were acting out of partisan vendetta against him and went to the Supreme Court a day after the state courts shut its door on him.
In an ensuing event, the SCBA President on Tuesday wrote a scathing letter to the secretary-general of the apex court to protest the “preferential treatment” granted to Arnab Goswami, whose plea got scheduled for the next day as soon as he moved to the Apex Court. Come Wednesday, The Supreme Court decreed the Maharashtra legislature to forthwith release Goswami and two others on interim bail, stating “individual liberty” is growingly becoming a casualty in the nation.
The SC, which is usually perceived as an independent pillar of our democracy, at least FORMALLY, did the wise thing to emphasise and cite “personal liberty” for its decision. But in plain sight, the decision only makes the idea of the Judiciary being highly partisan than ever before, more sturdy. Why is that the court often keeps throwing many other such cases pertaining to civilians’ rights back and forth for rescheduling?
Just after Goswami’s bail hearing, the likes of Mohua Moitra and Dushyant Dave took to Twitter to point out the preferential treatment doctrine being practised by the institution explicitly since 2014. The institute that once used to be considered a citizen’s last hope for justice is running out of constitutional morality. In a worrying trend, the apex court has been either adjourning or dismissing the habeas corpus petitions pertaining to human rights and civil liberty issues across the country. Solid examples are issues like CAA, where the ex-CJI Gogoi behaved more-executively than the government itself. Further, the court asked people to first stop protesting and then only it would begin hearings in the matter. The Justices chose to turn a blind eye to petitions pertaining to abrogation of Article 370 and illegal detention of innocent citizens in parts of Kashmir. In one interesting incident, the ex-CJI told the prosecutors of a woman demanding for her Article 19(1)(d) rights that “Srinagar is a cold place, why do you want to move around?”
Below are a few instances that only prove that SC is no more distinguishable from the executive:
- Back in 2016, CJI TS Thakur broke into tears over government inaction on vacancies and appealed to the PM to protect the Judiciary. He began a mordacious attack on administration inaction, squarely indicting the Centre for hindering appointment of justices to the High Courts. He further criticised the Government for doing zilch to expand the number of courts and judges in the nation, thus negating the poor man and under trial prisoners their due of justice.
- In 2018, Former CJI RM Lodha was quoted as saying that the government had thumped at the very heart of judicial freedom displaying their care over the stalemate that took place among the Supreme Court and the Government. Four retired CJIs sought how CJI Dipak Misra had let the government stonewall the Collegium’s advice.
- In 2018, just after the Appointment of Judge Loya case to J. Arun Mishra’s bench, Four senior judges of the Supreme Court mounted an implicit revolt upon the chief justice, listing a litany of predicaments that they said are afflicting the country’s formidable court and suggested they could damage the Republic.
- In 2019, The Supreme Court ordered the Election Commission to watch the biopic PM Narendra Modi and present its decision in a sealed enclosure. This is not the first time the court has asked for reports to be proffered in sealed covers – electoral bonds, Rafale deal, National Registry of Citizens, and loan defaulters’ list from the RBI were some of the foregoing instances. Transparency and culpability form the foundation of Indian jurisprudence. In such a situation, keeping one side of advocates robbed of information that is presented to a judge does not behove the constitutional postulates that Indian courts live by. The method was called by numerous ad hoc and arbitrary and a means to restrain the citizens out of public debate.
- The sexual charges against the then sitting CJI had a consequential role in smearing the credibility of the SC. Later in March 2020, when he was appointed to Rajya Sabha by the Prime Minister, the Judiciary, once again found itself in the witness box to prove its independence.
- In 2019, Advocate Utsav Bains signed a known Facebook post claiming that an unidentified person, perhaps a ‘fixer’, had offered him Rs 1.5 crores to represent the sexual harassment charge on then CJI Ranjan Gogoi, to compel him to resign. This further denigrated the Court’s integrity and raised questions on its independence.
- In the same year, Madan B Lokur warned of ‘a death knell of the independence of the judiciary’ except the newly elected CJI SA Bobde discussed some matters concerning the way the courts are operated. He also said that it was CJI Bobde’s obligation to reclaim the top court’s credibility urgently.
- Arun Mishra, one of the judges at SC has very close ties with the BJP, which both sides have confirmed time and again. He is the judge who is customarily allocated to politically sensitive cases, and in the majority of those cases, the decisions are given in BJP’s inclination. In one such brazen episode, Justice Arun Mishra withheld to withdraw himself from overseeing a Constitution bench examining his earlier judgment in a matter linked to the Land Acquisition Act.
While the SC has highlighted its position expressing seriousness to sustain individual liberty of civilians, the body appears to forget the names of ordinary citizens like Prashant Kanojia, Dhaval Patel, Gautam Navlakha, Vernon Gonsalves, Umar Khalid, Varvara Rao, Dr Kafeel, Sanjeev Bhat, Aasif Sultan, Sharjeel Imam, Siddique Kappan, Anand Teltumbde, Stand Swamy, Meeran Haider, Khalid Saifi, Asif Iqbal, Sudha Bhardwaj, and many other activists, students, journalists, citizens languishing in limbo without trials for months for having one trait in common; questioning the party in leadership. What about the personal liberty of these citizens? Imprisonment of rights activists has been happening for years without producing any charge. Slapping with sedition and UAPA to political dissidents is not constitutional.
The question that we all should be asking is why does the registrar of SC never open its reasoning of analysis of the “perverse” case, which are not subjected to friends of the government? Surely, our democracy is on the path of destruction when citizens of Kashmir are barred into a de facto lockdown with limited internet accessibility for more than a year with no plans to put an end to it in the near future. India’s ranking in the Rule of Law Index is plummeting each year. Over 3.5 crore cases are pending across courts and the backlog is only building with time. The witch-hunt by the demagogues is in full swing and the judiciary decides to stay hushed, if not complicit in their wickedness. The Supreme Court should refrain from partisan politics. By doing so it is only losing its credibility and independence.
Equality assurance before the law as an absolute right remains just terms. The Judiciary ought to raise a call for fairness for all, not solely for its allies. No one puts it better than Indra Jaisingh, “Bail not jail for all undertrials should be the norm for both friends and opponents, that is the rule of the law.” It’s high time we have an equivalence in the administration of justice because nobody can save the Judiciary but itself.