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[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

[First published here. Reposted with permission.]


In this blog post, Abhinav Sekhri has lucidly highlighted some of the systemic issues around the journalist Prashant Kanojia’s arrest and subsequent release on bail: in particular, the heavily politicized character of the police forces, and the structural reasons why Magistrates – the first line of defence in the fight for civil rights – too often act like postage stamps when it comes to confirming remand orders. In this post, I want to approach the issue from another angle, focusing on the Supreme Court. I will argue that the Court’s bail order is an extraordinary one, departing from ordinary procedure, and can only be justified if its underlying jurisprudential basis is an extraordinary emphasis being placed upon freedom of speech and personal liberty. While the Court does not spell this out in the order, it is – as I will argue – necessarily implied; but at the same time, it will have value only if it is now applied across the board and uniformly, in cases of this kind.

Recall that Kanojia was arrested by the UP police for some tweets “defaming” the Chief Minister of UP, and others that allegedly “insulted Hindu gods and goddesses” (the latter allegation was added subsequently, presumably after the UP police discovered that out of the two criminal provisions in the FIR, criminal defamation was non-cognisable – making the arrest illegal – and that not only had they erroneously invoked Section 66 of the IT Act instead of 66A, but 66A itself had been struck down as unconstitutional four years ago). In response, Kanojia’s wife moved the Supreme Court through a habeas corpus petition under Article 32 of the Constitution. Crucially, however, by the time that the case was heard by the Supreme Court, Kanojia had been produced before a Magistrate, who had remanded him to custody until 22 June. This meant that effectively the petition was no longer challenging Kanojia’s arrest but a judicial order of remand.

In this context, there were two important procedural questions that arose. The first was whether a habeas corpus petition was maintainable against a judicial order (as opposed to the more standard set of cases where habeas corpus challenges an illegal arrest); and the second was whether, as a matter of judicial propriety, the Supreme Court should have heard the matter under Article 32, when the High Court of Allahabad had not been approached by way of Article 226 proceedings.

 Maintainability

It is important to (very briefly) recapitulate the basics. The writ of habeas corpus – as everyone knows – was evolved to protect individuals against illegal detention, by forcing State authorities (in whose custody they were) to produce them in court. The State would then have to prove that the detention was legal; if it could not do so, the individual would be set free.

This makes it immediately clear that by definition, the habeas corpus remedy is directed against the Executive. However, where constitutional procedures under Article 22 have been fulfilled – i.e., the arrested individual has been produced before a Magistrate within 24 hours, unless the arrest has been made under a preventive detention law – at that point, a judicial authority has been seized of the matter. If the judicial authority then directs the accused to be remanded, the deprivation of his liberty is no longer courtesy of the Executive, but has received judicial imprimatur. Ordinarily, then, a habeas corpus remedy – through which the writ courts can be approached directly – will not lie; the accused must take their chances through ordinary proceedings, presumably under Section 439 of the CrPC. .

Over the years, however, the Supreme Court has carved out a very narrow set of exceptions to this rule. The position of law was summed up most recently in March 2019, in CFIO v Rahul Modi (thanks to Abhinav Sekhri for directing me to this case), where – on a survey of precedent – the Supreme Court reiterated that a habeas corpus petition against a remand order would not lie unless the Magistrate had acted without jurisdiction or if the remand order was “without jurisdiction or passed in an absolutely mechanical manner or wholly illegal” (this formulation comes from Manubhai Ratilal Patel v State of Gujarat). The basic idea appears to be that if the Magistrate acts in a way that cannot be described in any sense as “judicial”, their order is no better than arbitrary executive detention, and can therefore be challenged through habeas corpus.

It should now be obvious that, in the context of this high threshold, the Supreme Court’s finding that the habeas corpus was maintainable necessarily depended upon its finding that the Magistrate’s order of remand was “wholly illegal” or had been passed “absolutely mechanically” (jurisdiction was not an issue here). The Court, however, made no mention of whether the remand order had been passed “mechanically” or not; what it did say was that it was granting bail because of the “glaring case of deprivation of liberty as in the instant case, where the jurisdictional Magistrate has passed an order of remand till 22.06.2019 which means that the petitioner’s husband- Prashant Kanojia would be in custody for about 13/14 days for putting up posts/tweets on the social media”, and in view of the “excessiveness of the action taken.”

Although Justices Banerjee and Rastogi did not elaborate further, our discussion above should make it clear that the Court’s order rests upon the necessary inference that freedom of speech and personal liberty are such critical constitutional values, that the “deprivation of liberty” for a pure speech offence (“… putting up posts/tweets on the social media” (sic)) would ipso facto be presumptively illegal. Notice that the Court did not qualify its order in any way, or dilute it, by making observations about the character or the nature of the speech in question. Instead, the Court noted that “the fundamental rights guaranteed under the Constitution of India and in particular Articles 19 and 21 of the Constitution of India are non-negotiable.”

In other words, therefore, it necessarily follows from the Court’s order that granting custody for pure speech offences is illegal and unconstitutional (of course, this does not include cases involving an ongoing incitement to violence or public disorder, because in those cases it is no longer a pure speech offence – but it does involve cases of defamation, “hurting religious sentiments”, obscenity and the like). It is perhaps a measure of how far we have drifted from the promise of the Constitution that this eminently sensible and reasonable proposition today sounds almost odd to the ears. Readers will recall how, in a similar case, another bench of the Supreme Court told an individual that “jail would be the safest place” for him, for offending religious sentiments.

Article 226

The second issue was not one of formal maintainability, but of propriety. Even under writ proceedings, there is no doubt that it would have been more appropriate for habeas corpus proceedings to have been filed before the Allahabad High Court, instead of leapfrogging it to come straight to the Supreme Court. Here again, the Court noted that:

As a matter of self imposed discipline and considering the pressure of mounting cases on this Court, it has become the practice of this Court to ordinarily direct that the High Court first be approached even in cases of violation of fundamental rights. However, Article 32 which is itself a fundamental right cannot be rendered nugatory in a glaring case of deprivation of liberty as in the instant case, where the jurisdictional Magistrate has passed an order of remand till 22.06.2019 which means that the petitioner’s husband- Prashant Kanojia would be in custody for about 13/14 days for putting up posts/tweets on the social media.

Here again, what seems to have particularly weighed with the Court was that Kanojia had been unduly deprived of his personal liberty – and by the time the High Court could be approached and pass orders, this violation would remain an ongoing one. Once again, this is an approach that places an extremely high premium on personal liberty – where even an hour spent in custody is a grave infringement of rights that must be taken with utmost seriousness – and is keeping in with the finest ideals of the Constitution. If followed consistently, it would transform the existing situation – especially, for example, with regard to under-trials who spend years languishing in jail by virtue of provisions such as Section 43(D)(5) of the UAPA.

Conclusion

An American legislator once famously said: “If I let you write the substance and you let me write the procedure, I’ll screw you every time.” Some of the most significant legal developments take place not through sweeping substantive changes to law, but through subtle, almost unnoticed procedural evolution. The Supreme Court’s brief bail order in Kanojia’s Case is an order that, in the manner in which it engages with procedure, has the potential to transform substantive constitutional law and jurisprudence, towards a more rights-protective direction. However, so far it remains only potential: this is because although the substantive issues necessarily flow from the procedural findings, they have not been specifically spelt out in the judgment (and understandably so). Thus, while Justices Banerjee and Rastogi ought to be applauded for the verdict – and for what it entails – it is now the task of the Supreme Court, the High Courts, and the lower courts to take this forward and make it truly meaningful.