Supreme Court sheds a tear for liberty!

By Cleofato A Coutinho
02 December 2020 23:08 IST

There could never be a doubt on what stand D. Y. Chandrachud J.would take on Liberty. His record on that aspect is unblemished. It could be said that Arnab Goswami had secured his liberty a day before his release upon the matter being listed before the bench headed by him.. His dissenting judgement in the matter of dropping up charges in the Bhima Koregaon case is the proof of his commitment to liberty.The sole dissent demanded a court appointed investigation team. After examining case diary and documentary evidence he doubted the fairness and independence of Maharashtra police. “Individuals who assert causes which may be unpopular to the echelons of power are yet entitled to the freedoms which are guaranteed by the Constitution. Dissent is a symbol of a vibrant democracy’. He held the view “dissent is the safety valve of democracy. If dissent is not allowed then the pressure cooker may burst”. With such clarity of thought, there could never be doubt over which way Arnab Goswami’s liberty was heading. The Bombay High Court may have rejected Goswami’s plea for interim relief, the court held hearing on a saturday till 6.00 pm and during vacation he got a supreme court bench to hear him within 24 hours. These are high standards our courts must set for themselves and must apply in all cases of detention. We must compliment them for the alacrity with which they acted in the matter of liberty of a citizen. The questionable part of this access to justice is that of late lesser mortals do not get the same attention. “While thousands of Citizens remain in jails languishing for long periods while their matters filed before the Honble Supreme Court are not getting listed for weeks and months, it is, to say the least, deeply disturbing as to how and why every time Mr Goswami approaches the Supreme Court, his matter gets listed instantly” questioned the Supreme court bar association president Siddique Kappan arrested on his way to Hathras is in custody for about 40 days. A SC bench told Kapil Sibal to approach the High Court. In October this year another bench told Indira Jaising that 81 years old Varavara Rao must move the Bombay High Court for medical bail. He is in custody in the Bhima Koregaon matter for over 800 days. Ailing Sudha Baradhwaj, also in custody for over 800 days was told to move the trial court for regular bail “You have a good case on merits. Why don’t you file a regular bail application?” is what the Supreme court told her lawyer. The court did not think it fit to order her release. She still languishes in jail. Is it their fate that public intellectuals like Anand Teltumbe, social activists like Fr. Stan Swamy and activists like Umar Khalid could not get the same attention from the courts. Hundreds of Habeas corpus petitions are pending before the J&K High Court, filed after the abrogation of art. 370. The supreme court itself refused to hear habeas corpus matters filed by activists detained in J&K after the abrogation of special status. A former Union minister Saifuddin Soz was seen on TV being prevented from leaving his house when the Union Government told the Supreme Court that he is not in custody. What does a citizen do when a democratic government treats political dissidents as terrorists and slap with a sedition or a UAPA charge and the courts refuse to entertain their petitions? Can a democracy which imprison it’s artists, poets, journalists and cartoonists or comedians ? That’s the point that is being made Bail to Arnab was a forgone conclusion. The abatement to suicide offence was only an excuse discovered by an entranged ally trained in Vendetta school of thought. Though the liberal class shed little tears for him, his brand of journalism could not be met by vigilante justice. The police cannot be allowed to file frivolous cases and use illegitimate power and disproportionate force to force citizens into submission. The Chandrachud J. headed bench saw it correctly In the case of Arnab Goswami, the principal issue was the magistrate at Alibaug did not apply his mind that a criminal offence is not made out. That is exactly the case in each of the cases whether in Bhima Koregaon or the cases against other political dissenters facing sedition or UAPA- that there is no material to sustain the charges. Even in the matters of preventive detention the issue in most cases is non-application of mind by the detaining authorities. All that citizens seek is application of judicial mind by the high courts or the Supreme Court. That responsibility appears abdicated when habeas corpus petitions are kept pending for long. Chandrachud J has set a new benchmark for the Supreme Court and of course for the high courts which was seen as having failed the duty of protecting the liberty of the citizens. It was so reassuring to hear “ If we as a constitutional court do not lay down the law and protect liberty, who will?” These words must ring in the ears of judges each time the cases of liberty involving of political dissenters, minority & dalit leaders student activists and media personnel who find themselves put on the wrong side of law only because what they say is not palatable to the ruling establishment. They are lesser mortals dubbed as ‘urban naxals’ and require the courts more than their cheer leaders. Only time will tell whether the concern and alacrity shown by the Supreme Court to Arnab Goswami becomes a new precedent for those who the government finds uncomfortable
Disclaimer: Views expressed above are the author's own.

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

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