The Privilege of being heard : Part I

BY: Areeb Uddin

Disclaimer: The right to get heard is an important facet of Article 21 coupled with Article 14, but the listing of matters have been delayed, due to either the pandemic or some case logs. But recently, there have been instances when individuals have been granted relief and listing on the same. This poses a serious question, not on the courts but within the procedure itself. In this series 'The privilege of being heard' the author(s) would be dealing with different aspects and the law concerned.

India is one of the largest democracy around the globe with around millions of pending cases, whether civil or criminal. After Agriculture, people prefer to see each other in ‘courts’, hence the statement ‘See you in court’ is often used, but will the court hear you? It depends on when your case is listed, registered and allocated. Recently, Manoranjan Goswami was interrogated & arrested by the Mumbai Police in relation to case which had its roots from 2018. It was a case of suicide and the gentleman was charged with abetment to suicide as his name was clearly visible in the suicide note.

Mr. Manoranjan has been in news for a while, not only because he runs a News channel, but also because he had been accused of inciting within the society. The Supreme Court today granted him bail, with additional directions that the said order should be implemented immediately. It was observed in the order of the Hon'ble Court that "We are of the considered view that the High Court was in error in rejecting the applications for the grant of interim bail. We accordingly order and direct that Arnab Manoranjan Goswami, Feroz Mohammad Shaikh and Neetish Sarda shall be released on interim bail, subject to each of them executing a personal bond in the amount of Rs 50,000 to be executed before the Jail Superintendent. They are, however, directed to cooperate in the investigation and shall not make any attempt to interfere with the ongoing investigation or with the witnesses.

But was it needed, when the Sessions Court is already analyzing the case on merits, such overreach directions are not only disturbing for the lower courts but also, to those political prisoners who have been neglected at times, and still there are behind the bars. When Sudha Bhardwaj, applied for an interim relief, the same court had rejected the contentions made, and it was observed by the bench: "You have a good case on merits. Why have you not moved for regular bail?". Then, the Karnataka High Court granted bail to some protesters who were charged for conspiracy during the CAA protests, but the Supreme Court stayed the aforesaid order and directed to serve notice accordingly. It was observed by the bench that “Issue notice. In the meantime, there shall be an ad-interim stay of operation of the impugned judgment and order passed by the High Court if the respondents-accused are still in custody,” 

The question is not about the interpretation, construction or formation of facts or law, but how only specific individuals are given the privilege of being heard. The right to get a hearing is a fundamental right, but the process in between is very complex, because the listing of cases is regulated by the registry and only few matters have been given priority, like if it is a political tussle, notch on National Security or ‘some individuals’ who have been granted with relief the very same day. Recently, Senior Advocate Dushyant Dave, wrote a letter to the Secretary General of Supreme Court, it is noteworthy to refer his contentions in the letter:

"While thousands of citizens remain in jails, languishing for long periods while their matters before the Supreme Court are not getting listed for weeks and months, it is, to say the least, deeply disturbing, how and why every time Mr. Goswami approaches the Supreme Court, his matter gets listed instantly. Is there any special Order or Direction from Hon'ble the Chief Justice of India and the Master of the Roaster in this regard ?"  Hence, there are some glitches which are there, and they need to be acknowledge by the court with detailed reasoning. Why is it so that an individual who approaches the court that too when the vacations are going on, has been given the liberty to get heard and an order is passed on the same day. During the course of hearing today, reference was made to different case where the court had either impliedly rejected or ignored the contentions. As reported by Livelaw, a comment on the recent detention of a journalist was made by the counsels but the Bench refused to make any observations: “A Kerala journalist was arrested by UP police when he was going to Hathras to report. We came to this Court under Article 32. The Court said go to lower court. The petition was posted after four weeks. Such things are also happening". Hence, this selective approach is quite dangerous because freedom and rule of bail should universally applicable, coupled with the fact that it should not vary from bench to bench, which is often observed.

In 2018, when a bench led by Justice Muralidhar of Delhi High Court ended the house arrest of Gautam Navlakha, as there was no connection made out because his name was not listed in First Information Report, but later the Supreme Court rejected the contentions and order him to surrender within 30 days, and ironically he was arrested on Dr. B.R. Ambedkar Jayanti. It can be understood that there might be some contentions which were doubtful in the cases above, but following the Manoranjan Goswami’s bail order, it is quite obvious that court should have interfered at that time too? Varavara Rao, who is an aged and well known poet, was arrested in connection with Bhima Koregaon case. His wife moved to the Supreme Court, in which she prayed for an interim relief because of the inhumane treatment given to the activist in his old age, but no good was achieved. In the plea it was contended that - --“No useful purpose is being served by his continued incarceration except to torture him beyond human endurance. All bail applications are by definition urgent and ought to be given priority in hearing by all judicial authorities especially in the time of Covid-19.”

In is noteworthy to refer what Justice Lalit observed in the said order, in a report by Scroll it was observed that three dimensions were taken:

1. First, a competent court had taken cognisance of the case, and therefore Rao’s detention was not “per se illegal”.

2. Second, the question of bail was under the consideration of the High Court.

3. Finally, the issue giving Rao bail, either on merits of the case or on medical grounds, was being looked into by the High Court. “So, how do we [Supreme Court] hear the case now”

But surprisingly, what Justice Chandrachud observed today was totally the opposite, the hierarchy of the courts was disrupted, despite knowing the fact that the Sessions court has taken cognizance of the cause already. The idea of free speech and liberty was never into question because it was a criminal case, but the concerned media house which Manoranjan owns has been portraying the arrest as an act of curbing dissent and free speech. It was contended by the Mr. Manoranjan that he was assaulted and humiliated, but to the contrary the Mumbai Police registered another First Information Report against Mr. Manoranjan for assaulting a police officer in-charge, it was reported by Livelaw - “However, as per the fresh FIR that has been registered by Sujata Tanvade claiming that Goswami had assaulted her during the morning of arrest. So far as Goswami's wife is concerned, the Police have claimed that she tore the intimation regarding Goswami's arrest.”

There are some Habeas Corpus cases which are still pending before the Supreme Court and no observations have been implied. After the special status was scrapped off, many cases from Kashmir was filed, also the Bar Association wrote a letter to the Chief Justice stating that -- “Since 6th of August, 2019, more than 600 habeas corpus petitions have been filed before the Hon’ble High Court of Union Territory of J&K at Srinagar and till date not even 1 per cent of such cases have been decided by the J&K High Court,” Lately, not only this but the challenge to Electoral Bonds is still floating on the table without any observation, the Scroll in one of it's report has rightly observed that - The challenge to the scheme was filed in the Supreme Court on September 4, 2017. The issue remains undecided. It has been 1,081 days.

The observation made by J. Chandrachud - "Whatever be his ideology, left to myself I don't even watch his channel, but if in this case, constitutional courts do not interfere today - we are traveling the path of destruction undeniably," is totally positive and it goes with the idea to withhold the trinity of ‘Fraternity, Equality and Liberty’ but why it has been followed only in selective cases, for instance the cases mentioned above have interpreted in another aspect, which goes against the rule of ‘bail not jail.’ To conclude, it is noteworthy to state that Mr. Manoranjan getting the bail is not an issue, but this selective approach of listing next day hearing, the privilege of ‘being heard’ is very dangerous, not only for the courts but also to those prisoners who have been jailed since months, but no ‘Constitutional’ court is interfering the way it did today.