Before joining the bandwagon to hurriedly slam Justice Chandrachud for upholding Goswami’s “Personal Liberty”, let us take a moment and understand what implications the judgement will have on other such cases.
The bail plea hearing of Republic TV Founder-Editor Arnab Goswami has brought to table the much-needed conversation around the role of the judiciary as a protector of personal liberty. At a time when journalists, dissenters across the country are facing harassment, are slapped with cases of defamation and sedition, the SC observation assumes all the more importance.
Arnab Goswami, arrested in a 2018 abetment to suicide case was denied bail by the Bombay High Court and was asked to pursue the case with the relevant lower court. However, Goswami instead approached the Supreme Court. The Supreme Court while on Diwali vacation listed the matter for urgent hearing. Justice DY Chandrachud while hearing the bail plea lambasted the Bombay HC and made an impassioned appeal in favour of personal liberty in case of state using its power with malice.
“If we don’t interfere in this case today, we will walk on the path of destruction…Constitutional courts will have to protect such freedoms…“
“If we as a Constitutional Court do not lay down law and protect liberty, then who will?”
The Apex Court eventually, granted bail to Goswami.
“All Citizens Are Equal but Some Are More Equal Than Others”
Many liberal thinkers, however, pointed out how journalists and activists have been languishing in jails across the country not being able to secure even a regular hearing, let alone being granted bail. The fact that Arnab Goswami was able to get the bail plea listed in front of SC bench while it was on vacation was in direct contrast to the treatment meted out to the journalists and dissenters who have spent months or in some cases years behind bars.
— Ruchira Chaturvedi (@RuchiraC) November 12, 2020
What unfolded in the Arnab Goswami case in the last few days has led to India’s liberals finding a new context to the quote derived from George Orwell’s Animal Farm- “All Animals Are Equal, But Some Are More Equal Than Others” and a reason to frown upon Justice DY Chandrachud who not long ago was hailed by them as one of the few progressive judges remaining at the country’s apex court.
Justice Chandrachud’s comment reminded me of Animal farm, “All animals are equal, but some animals are more equal than others.” https://t.co/Sedna32JXV
— Shoe-lace (@ThepakhalaShoe) November 12, 2020
However, before joining the bandwagon to hurriedly slam Justice Chandrachud for upholding Goswami’s “Personal Liberty” and accusing it of not upholding others’, let us take a moment and understand what implications the judgement will have on other such cases.
Bail is a rule; Jail is Exception:
The legal principle India has followed since 1978 is that Bail must be the rule and jail should only be an exception. This principle was laid down by the Supreme Court itself. That detention of an individual infringes his right to life and liberty as guaranteed under Article 21 of the Constitution of India and to protect it is the duty of the judiciary, lies behind the very concept of this principle.
The observations made by Justice Chandrachud reiterate the same, at the best, even send a message to his peers in the Supreme Court. Criticizing him for acting on the same principle is like suggesting that he shouldn’t have granted bail to Goswami and protected his personal liberty because the principle wasn’t upheld in other cases.
Setting up precedence:
Let’s look beyond the flood of instant outrage translated into quick takes on Twitter and carefully go through the observations made by Justice Chandrachud. For example, this statement, “We are assuming the allegations of FIR as gospel truth but even then, is a case of Section 306 made out? In a matter like this when some dues were not paid, would a suicide mean abetment? Would it not be a travesty of justice if someone is denied bail for this?”
Justice Chandrachud made the statement concerning the arrest of Goswami who is accused of abetting the suicide of Anvay Naik whom he allegedly owed money.
In the above observation, his statement conveys a message- the content or the allegations levelled in the FIR shouldn’t be treated as a Factuality rather be treated as an assertion.
It sets a precedent for all the lower courts in India to follow when dealing with cases where state forces seem to be acting with Mala fide intentions.
From Siddique Kappan to Dhawal Patel
The Scribes in India in the last few years have faced increased harassment at the hands of state machinery for doing their jobs. India’s press freedom index spells the hostile and uncertain environment in which journalists are working, the degree may vary.
Siddique Kappan, Kerala Based journalist with a digital portal was arrested on his way to Hathras accusing him of being a member of “PFI”. He was charged under UAPA and even named in the Conspiracy case. His wife claimed that his lawyer or even the family members are not being allowed to meet him or enquire about his health conditions.
Following the bail of Arnab Goswami, the Kerala Union of Working Journalists (KUWJ) filed an application in the Supreme Court, seeking directions to urgently hear Kappan’s bail petition which is listed for hearing by the Supreme Court on November 16.
In another case, the Gujarat Government cracked down on journalist Dhawal Patel, also an editor of a web portal, for a story speculating change of guards in Gujarat. He was charged under Sedition- “waging war on the state” and Disaster Management Act, 2005 for raising a false alarm. He was awarded judicial custody by additional chief metropolitan magistrate calling his story “fake news” but later an additional session judge said that offence wasn’t made out and granted him bail.
There are dozens of other activists, journalists who are facing the same fate. The Supreme Court’s observation in the bail plea of Arnab Goswami will rather act as a precedent in these cases.