SC Explains Why Arnab Got Bail, Lays Down New Precedent on Liberty

The Supreme Court on Friday, 27 November pronounced its reasons for granting interim bail to Republic TV editor-in-chief Arnab Goswami quite fortnight previously in reference to the abetment of suicide case against him.

The detailed judgment by Justices DY Chandrachud and Indira Banerjee says that the Bombay supreme court – which had declined Goswami’s request for interim bail – had “abdicated its constitutional duty and performance as a protector of liberty” by not conducting a clear evaluation of the FIR against Goswami and therefore the other accused within the case.

“If the supreme court were to hold out a clear evaluation, it might are impossible for it to not notice the disconnect between the FIR and therefore the provisions of Section 306 of the IPC,” the judgment says.

Because of its failure to try to to this, the Bombay supreme court had ended up telling Goswami, who had approached it to quash the FIR against him (and grant him interim bail within the meantime), to first approach the sessions court for bail instead of utilise its extraordinary jurisdiction under Article 226 to grant bail itself.

““The supreme court was clearly in error in failing to perform a requirement which is entrusted thereto while evaluating a petition under Section 482 albeit at the interim stage.”” – SC judgment dated 27 November

After restating the essential principles that courts must think about when choosing bail, the judges found that:

A clear evaluation of the FIR against Goswami and therefore the other accused doesn’t establish the ingredients of the offence of abetment of suicide under Section 306 of the IPC.

The FIR was supported the allegations of the deceased, Anvay Naik’s wife Akshata Naik, that Goswami and other clients of her husband and mother in law had driven them to suicide by failing to pay them certain sums of cash for his or her work, and therefore the suicide note by Anvay Naik which claimed an equivalent .

The accused are residents of India and don’t pose a flight risk during the investigation of the case. there’s no apprehension of tampering of evidence or witnesses.

In such circumstances, the accused should are granted bail by the supreme court , which is why the apex court did so back on Martinmas .

‘Criminal Law Must Not Become Weapon for Selective Harassment’

During that last hearing, Justice DY Chandrachud had made variety of strong observations about personal liberty, which are expanded on within the judgment.

The judges note that while there’s a public interest in ensuring due investigation of any crime and thus not having undue interference by the courts, the high courts got inherent powers under Section 482 of the Code of Criminal Procedure to stop abuse of process or to secure the ends of justice, which is “a valuable safeguard for shielding liberty.”

““Post-Independence, the popularity by Parliament of the inherent power of the supreme court must be construed as an aid to preserve the constitutional value of liberty. The writ of liberty runs through the material of the Constitution… the misuse of the legal code may be a matter which the High Courts and therefore the lower Courts during this country must be alive.”” – SC judgment dated 27 November

In Goswami’s case, the apex court noted that the Bombay supreme court couldn’t but have known that Goswami had specifically argued that he “was being made a target as a neighborhood of a series of occurrences which are happening since April 2020.”

During the hearings at both the supreme court and therefore the Supreme Court, Goswami’s lawyers Harish Salve and Aabad Ponda had argued that the journalist was being targeted “because his opinions on his channel are unpalatable to authority” (in this case the present Maharashtra government).

While the judges acknowledged that the merits of this claim still needed to be examined by the Bombay supreme court when deciding the quashing petition (listed for 10 December), they held that the supreme court had to require a clear view of it when faced with an invitation for interim bail at the outset, as

It is the duty of courts across the spectrum – the district judiciary, the High Courts and therefore the Supreme Court – to make sure that the legal code doesn’t become a weapon for the selective harassment of citizens.

The judgment notes that the doors of the Supreme Court can’t be closed to a citizen who was ready to establish – on the face of it – that the powers of the state are being weaponised against them, which “deprivation of liberty even for one day is at some point too many.”

While concluding, the judges note the celebrated tenet laid down by former Supreme Court judge Justice Krishna Iyer within the State of Rajastan vs Balchand case (1977), that the essential rule out our criminal justice system is ‘bail, not jail’. They observe that the high courts and therefore the district courts need to enforce this principle in practice, instead of leave it to the Supreme Court to intervene.

““Common citizens without the means or resources to maneuver the High Courts or this Court languish as undertrials. Courts must be alive to things because it prevails on the bottom – within the jails and police stations where human dignity has no protector.” ” – SC judgment dated 27 November

They stress that bail is that the means by which we preserve the presumption of innocence, which the apex court “cannot countenance” an approach where jail is that the norm instead of bail.

As a result, while this order was passed during a case where a citizen had been ready to approach the apex court, that they had written this judgment to “reiterate principles which must govern countless other faces whose voices shouldn’t go unheard.”

This should mean that the judgment will have application as a precedent in other cases going forward also .

After acknowledging that there are 91,568 bail applications pending before the high courts in India and 1,96,861 bail applications pending before the district courts (according to data from the National Judicial Data Grid), they urged the judges responsible of those courts to utilise tools at their disposal to deal with this pendency.

“Liberty isn’t a present for the few.”

Why Did the SC Say There Was No clear Case Against Goswami?

The apex court’s finding that a constitutional court must conduct a clear examination of an FIR against an accused once they file an invitation for quashing of the FIR – to make a decision whether to grant them interim bail – may be a vital takeaway.

The bench of Justices Chandrachud and Banerjee assert that this is often not a replacement position intrinsically , but has been in situ since the Supreme Court’s 1992 decision within the Bhajan Lal case.

According to them, if a criminal case like this is often brought before a constitutional court, it must see whether the allegations made within the FIR or the complaint – albeit taken at their face value and accepted in entirety – “prima facie constitute any offence or figure out a case against the accused.”

In Arnab’s case, they found that the Bombay supreme court had not done so in its 56-page judgment, and thereby “failed to use its mind to a fundamental issue which needed to be considered while handling a petition for quashing”.

When it came to the offence of abetment of suicide, the judges noted that the Supreme Court in multiple cases had held that the accused had to possess intent and brought some specific action to instigate an individual to require their own life. Mere mention during a suicide note isn’t enough, there needed to be some indication of persistent or causal harassment.

However, no such details were made call at the FIR against Goswami when it came to the deaths of Anvay Naik and his mother Kumud Naik, not even from the alleged suicide note, as these only indicated that the deceased were struggling as he hadn’t received money thanks to him, and had spoken to Goswami’s accountant for the payment of an equivalent .

“Prima facie, on the appliance of the test which has been laid down by this Court during a consistent line of authority which has been noted above, it can’t be said that the appellant was guilty of getting abetted the suicide within the meaning of Section 306 of the IPC.” – SC judgment dated 27 November