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

Justices Chandrachud & Banerjee held that high courts must see if a prima facie case is made out against an accused.

Supreme Court bench of Justices DY Chandrachud and Indira Banerjee granted Arnab Goswami bail.

(Photo: Kamran Akhter/The Quint)

The Supreme Court on Friday, 27 November pronounced its reasons for granting interim bail to Republic TV editor-in-chief Arnab Goswami more than two weeks previously in connection with the abetment of suicide case against him.

The detailed judgment by Justices DY Chandrachud and Indira Banerjee says that the Bombay High Court – which had declined Goswami’s request for interim bail – had “abdicated its constitutional duty and function as a protector of liberty” by not conducting a prima facie evaluation of the FIR against Goswami and the other accused in the case.

“If the High Court were to carry out a prima facie evaluation, it would have been impossible for it not to notice the disconnect between the FIR and the provisions of Section 306 of the IPC,” the judgment says.

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

“The High Court was clearly in error in failing to perform a duty which is entrusted to it while evaluating a petition under Section 482 albeit at the interim stage.”

SC judgment dated 27 November

After restating the basic principles that courts must factor in when deciding on bail, the judges found that:

• A prima facie evaluation of the FIR against Goswami and the other accused does not establish the ingredients of the offence of abetment of suicide under Section 306 of the IPC.

The FIR was based on 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 money for their work, and the suicide note by Anvay Naik which claimed the same.

• The accused are residents of India and do not pose a flight risk during the investigation of the case.
• There is no apprehension of tampering of evidence or witnesses.

In such circumstances, the accused should have been granted bail by the high court, which is why the apex court did so back on 11 November.

‘Criminal Law Must Not Become Weapon for Selective Harassment’

During that last hearing, Justice DY Chandrachud had made a number of strong observations about personal liberty, which have been expanded on in the judgment.

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

“Post-Independence, the recognition by Parliament of the inherent power of the High Court must be construed as an aid to preserve the constitutional value of liberty. The writ of liberty runs through the fabric of the Constitution... the misuse of the criminal law is a matter which the High Courts and the lower Courts in this country must be alive.”

SC judgment dated 27 November

In Goswami’s case, the apex court noted that the Bombay High Court could not but have known that Goswami had specifically argued that he “was being made a target as a part of a series of occurrences which have been taking place since April 2020.”

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

While the judges acknowledged that the merits of this claim still needed to be examined by the Bombay High Court when deciding the quashing petition (listed for 10 December), they held that the high court had to take a prima facie view of it when faced with a request for interim bail at the outset, as

“...  it is the duty of courts across the spectrum – the district judiciary, the High Courts and the Supreme Court – to ensure that the criminal law does not become a weapon for the selective harassment of citizens.”

The judgment notes that the doors of the Supreme Court cannot be closed to a citizen who was able to establish – on the face of it – that the powers of the state are being weaponised against them, and that “deprivation of liberty even for a single day is one day too many.”

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

“Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector.” 

SC judgment dated 27 November

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

As a result, while this order was passed in a case where a citizen had been able to approach the apex court, they had written this judgment to “reiterate principles which must govern countless other faces whose voices should not go unheard.”

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

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 in charge of these courts to utilise tools at their disposal to address this pendency.

“Liberty is not a gift for the few.”

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

The apex court’s finding that a constitutional court must conduct a prima facie examination of an FIR against an accused once they file a request for quashing of the FIR – to decide whether to grant them interim bail – is a vital takeaway.

The bench of Justices Chandrachud and Banerjee assert that this is not a new position per se, but has been in place since the Supreme Court’s 1992 decision in the Bhajan Lal case.

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

In Arnab’s case, they found that the Bombay High Court had not done so in its 56-page judgment, and thereby “failed to apply its mind to a fundamental issue which needed to be considered while dealing with 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 have intent and taken some specific action to instigate a person to take their own life. Mere mention in a suicide note is not enough, there needed to be some indication of persistent or causal harassment.

However, no such details were made out in 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 under pressure as he hadn’t received money due to him, and had spoken to Goswami’s accountant for the payment of the same.

“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.”

SC judgment dated 27 November