'SC has not only upheld personal liberty, but freedom of press': Lawyer Swapnil Kothari

The Hon’ble Supreme Court today, in its judgement on interim bail to Arnab Goswami on November 27, 2020 (just a day after the Constitution Day) has not only upheld the cherished paradigm of personal liberty but also, upheld that sine qua non of a vibrant democracy, which we call as the “Freedom of Press.”

As the great American Judge Felix Frankfurter observed, “The history of liberty has been largely been the history of the observance of procedural safeguards.” It so aptly applies here that an individual’s liberty was taken away without following the due procedure established by law and in a high-handed manner.

Extremely important are the observations of the top Court firstly in paragraph 55:

“Prima facie, on the application of the test which has been laid down by this Court in a consistent line of authority which has been noted above, it cannot be said that the appellant was guilty of having abetted the suicide within the meaning of Section 306 of the IPC. These observations, we must note, are prima facie at this stage since the High Court is still to take up the petition for quashing. Clearly however, the High Court in failing to notice the contents of the FIR and to make a prima facie evaluation abdicated its role, functions and jurisdiction when seized of a petition under Section 482 of the CrPC.”

Secondly in paragraph 56:

“The petition before the High Court was instituted under Article 226 of the Constitution and Section 482 of the CrPC. While dealing with the petition under section 482 for quashing the FIR, the High Court has not considered whether prima facie the ingredients of the offence have been made out in the FIR. If the High Court were to have carried out this exercise, it would (as we have held in this judgment) have been apparent that the ingredients of the offence have not prima facie been established. As a consequence of its failure to perform its function under Section 482, the High Court has disabled itself from exercising its jurisdiction under Article 226 to consider the appellant‘s application for bail. In considering such an application under Article 226, the High Court must be circumspect in exercising its powers on the basis of the facts of each case. However, the High Court should not foreclose itself from the exercise of the power when a citizen has been arbitrarily deprived of their personal liberty in an excess of state power.

The above observations of the top Court are paving the way for the High Court, after due deliberation, to quash this case as and when it comes up for hearing simply because if prima facie there are no ingredients to invoke Section 306, IPC (Abetment to Suicide), then there is little chance that evidence to that effect can be produced by the Complainant or the State during the course of the hearing.

More significantly, it observed in paragraph 61:

“The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.” (emphasis supplied)

Mellifluous as the observation sounds to our ears as a babbling brook, the top Court advises the High Courts and the other lower Courts that even one extra day in incarceration is violative of Article 21 and the lower Courts (only in hierarchy) are fully equipped to grant adequate reliefs to the detenu and ought not to fight shy of doing the same by sending the case back to the appropriately-tiered Court as that involves time and money of the litigant. The wrong decisions of all Courts have a deeper systemic implication – i.e. stifle the Rule of Law and shake the trust of 125 crore Indians in the Judiciary.

Yet another observation in paragraph 60 is crucial to the smooth functioning of our democracy:

“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.”

The top Court clearly endorses that the survival of our precious freedoms seeks endorsement from the media (although unpalatable and cacophonous to some) and the dusty corridors of the Courts alive to the cri de couer of the litigants (although dusty to some but nevertheless bustling). It is very apparent that the Supreme Court is strengthening the case of a Free Press in its full splendour thereby ensuring that the voice of the common man (speaking through a free Press) is not muzzled and the fourth pillar of our democracy is as strong as it can be.

As Justice Hugo Black rightly observed in the celebrated Pentagon Papers case, “The Press was to serve the governed, not the governors...A free media functions as a watchdog that can investigate and report on government wrongdoing. It is also a vibrant marketplace of ideas, a vehicle for ordinary citizens to express themselves and gain exposure to a wide range of information and opinions.”

In fact, this entire slugfest between the Republic TV and the State begs a Presidential Reference under Article 143, where the President can convert Arnab Goswami’s letter to him in the form of a set of questions requesting an opinion from the Supreme Court under its advisory jurisdiction under Article 143 – the questions could relate to an interplay between the Media and the State and probe a larger question as to how limited a role should the State have so that the Media can be free to voice the opinions of the governed without fear of any reprisal. And that opinion of the Supreme Court could well be another landmark as its previous Art. 143 opinions. I hope that happens and can only say “Amen” to that. 

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Disclaimer: The author of this article, Swapnil Kothari is a senior lawyer. The views and opinions expressed within the article are the personal opinions of the author. The facts, analysis, assumptions and perspective appearing do not reflect the views of Republic TV/ Republic World/ ARG Outlier Media Pvt. Ltd.