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In Defence of Personal Liberty

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The chief justice of India’s statement that the Supreme Court is keen on discouraging petitioners resorting to Article 32 has drawn criticism as it is one of the basic features of the Constitution. Perhaps he was alluding to the flood of petitions reaching Court when personal liberty is not taken seriously by High Courts.

By Justice (retd) Kamaljit Singh Garewal

How passionate are We, the People of India, about our rights? Not much, one would think. Long years ago, the People gave to themselves the Constitution, when they asserted their passion for justice, liberty, equality and fraternity. Now seven decades later, the passion has ebbed. The generation that drafted the Constitution has moved on and the new one is not concerned about ideals as much as about health, education, jobs, food and housing.

In such a milieu, is discussion about the right of citizens to enforce constitutional remedies meaningful? Citizens’ rights have been violated millions of times. How are these rights to be enforced, is the next big question. File millions of petitions under Article 32, is the answer.

It has been often said that during colonial times, people were slaves of the British, especially the ancestors of our rural poor, tribals and Dalits. A few were subjects of either the British sovereign or Indian princes. After Independence, slaves have become subjects, subjects have become citizens. The middle class enjoys rights. The rest live under promises, but only just. As many poor people that there are, that many rights are in need of protection. Is the Supreme Court of India up to the task? This is the chief justice’s cry of anguish, which has been misunderstood as curtailing of rights. Remedies are not being curtailed, rights are being extinguished. Poor people’s rights need protection.

The point may be illustrated by an imaginary express train. This train has a thousand seats and is chugging along. Only a few people whose cases are decided get off, so only a few people can get on. This was the situation in the 1950s and 1960s. Seventy years on, people on the platforms of wayside stations do not wait for seats to be vacated, they get on board all the same. Some hang from the doors, many crowd the corridors and a few even climb to the roof. The engine driver tries to accommodate everyone, but soon the load of passengers (read justice-seekers) will be so much that the train will slow down and finally come to a grinding halt. When that happens, it will need more engines and more fuel to get moving again. 

Everyone has the right to enforce all or any of the fundamental rights. This is the mandate of Article 32(1), which gives the Supreme Court the power to issue directions, orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto or certiorari.

Chief Justice SA Bobde’s statement recently that the Supreme Court is keen on discouraging petitioners from resorting to Article 32 has drawn fair criticism from scholars and lawyers. Article 32 is one of the basic features of the Constitution. This is a given, there need be no debate. Remedy for enforcement of rights conferred by Part III is the “heart and soul” of the Constitution and is itself a fundamental right. Judicial review under Articles 32 and 226 of the Constitution is a basic feature of the Constitution.

Let us see how Article 32 works. It has been designed to protect the rights of individuals or small groups of individuals against violation of fundamental rights given in Part III of the Constitution. This is through judicial review of administrative action, sometimes even by review of legislation passed by Parliament or state legislatures.

This jurisdiction is exercised when the law is challenged as unconstitutional on the ground of being ultra vires the Constitution, or lack of legislative competence, or violative of Article 14 and so on. Judicial reviews also come into play against orders of various tribunals and revenue boards.

There are about 35 tribunals, the prominent ones being the Central Administrative, Armed Forces, Income Tax Appellate, Customs, Central Excise and Service Tax, National Green and Food Safety Appellate.

Judicial review of administrative actions reaches the courts through appeals and special leave petitions. Under this category, courts do not hear appeals (unless provided by law), but satisfy themselves that there has been no procedural irregularity, irrationality or disproportionality in the impugned order. And the party got a proper hearing before the impugned order was passed.

The power to issue directions or orders or writs is not an exclusive power of the Supreme Court, High Courts also enjoy this power under Article 226 of the Constitution. In passing, it may be mentioned that recommendations of the Supreme Court on November 27, 2020, for the National Tribunals Commission is a great step forward. One hopes this will lead to filling of vacancies and quick dispatch of business.

On the aspect of personal liberty, by far the most important protection a person has is under Article 21, which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 20 lays down certain important protections, which are jurisprudentially well-understood. But the greatest violation of personal liberty occurs when a person is arrested. And some crimes take place in police custody, including torture and murder. As a nation we seem to be beyond caring.

Article 22(1) and (2) of the Constitution contain the right to be informed of the grounds of arrest, the right to consult and be defended by a lawyer of choice, the right to be produced before a magistrate within 24 hours, and the right not to be kept in detention without the authority of a magistrate. These rights are covered by the habeas corpus jurisdiction of courts. Occasionally, if personal liberty is taken away by a law violative of the Constitution, other writs may also be issued.

Personal liberty must be protected at all costs for the survival of the country is Justice DY Chandrachud’s message. This is a grave warning, but is anyone listening. It is not certain in which context the chief justice of India made the controversial remarks. Do we not know that only a minuscule minority reaches the Supreme Court with a petition under Article 32? Perhaps he was alluding to the flood of petitions which may reach the court if Justice Chandrachud’s warning in matters of personal liberty is not taken seriously by High Courts and trial courts. Most violations of personal liberties happen under the nose of the Judiciary, but do not come to the notice of the protectors of personal liberty. The arrested accused persons are seldom produced before the magistrate within 24 hours, sometimes not informed of the reasons for their arrest and occasionally not allowed to consult a lawyer. Everyone keeps harping that “law shall take its own course”, but it’s a long and bumpy ride with no end in sight.

The chief justice of India is not wrong when he feels that petitions under Article 32 should be discouraged. He did not say they should not be heard. What he probably meant was that the establishment should also protect the rights of citizens and not leave everything to the Supreme Court.

His remarks drew a strong reaction from Justice AP Shah in an interview with Karan Thapar. Justice Shah made scathing comments on the distribution of work in the Supreme Court.

He also pointed out that Arnab Goswami’s appeal was heard with great speed during vacations, and many objections in the SLP were overlooked. The matter was heard while many other bail applications were awaiting their turn. Justice Shah also made a list of important pending cases like challenges to the Citizenship (Amendment) Act (CAA), scrapping of Article 370, denial of internet to Jammu & Kashmir and many others.

But Justice Shah was gracious enough to agree with Justice Chandrachud’s order of interim bail to Goswami.

The judgment of Justice Chandrachud and Justice Indira Banerjee in Goswami’s case was pronounced on November 27, 2020. It is a landmark judgment in defence of personal liberty, with sweeping directions on bail and quashing matters. The constitutional vision of personal liberty and how to protect and safeguard it has been elegantly spelt out.

Before the matter reached the Supreme Court, some very unusual things happened to Goswami. He was arrested dramatically from his home at 7.45 am on November 4 by a posse of Alibaug police for having abetted the suicides of a mother and son in May 2018. This display of muscle was unnecessary as he wasn’t likely to resist arrest or escape or take a shot at the police.  Within six hours, his petition was before the High Court with a prayer for quashing of the FIR. And when bail was declined by the lower courts and rejected by the High Court, he appealed to the Supreme Court. The matter came up with great alacrity, was heard and he was granted interim bail.

The judgment contains a review of the jurisprudence in bail and quashing matters because the judges felt the need to restate the law. From the judgment it appears that the Bombay High Court did not evaluate the FIR at all, but wrote a long order declining bail. The High Court has now been asked to “….take a final view when the proceedings are listed before it but 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”.

The Supreme Court laid down: “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.”

On liberty, the Court observed: “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.”

And the Court highlighted: “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.”

Finally, the expectation from criminal courts: “It is our earnest hope that our courts will exhibit acute awareness to the need to expand the footprint of liberty and use our approach as a decision making yardstick for future cases involving the grant of bail.”

To uphold the majesty of law is the duty of every citizen. But law enforcement agencies ignore this and instead, believe in unleashing the fury of law, an alien concept, a throwback to pre-1950 times.

Also Read: Supreme Court sets aside dowry case conviction, life sentence of Haridwar family of 3

The Supreme Court has reinforced the majesty of law. We are on the verge of revolutionary changes in the criminal justice system, when bail shall be granted with ease, quashing matters heard dispassionately and trials concluded quickly for condign punishment to the guilty without delay.

—The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York

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