It’s safe to say that over the last few years, the Supreme Court of India has taken a bit of a battering in the public eye. There have been many controversies surrounding its Chief Justices, including the ham-fisted approach to the sexual harassment allegations against Ranjan Gogoi.
The failure to actually deliver a judgment of real constitutional significance since the Section 377 decision. The evasion of even hearing cases that might be uncomfortable for the Modi government.
The reduced stature of the "most powerful court in the world" was perhaps best summed up by the surprise which accompanied Justice DY Chandrachud’s incisive questioning of the Centre’s vaccine policy, leading to a revision of the said policy after the apex court demanded all documents relating to the “prima facie unconstitutional” policy’s formulation.
The vaccine policy hearings appeared to be the latest sign of change at the apex court under the stewardship of the new Chief Justice of India, NV Ramana.
They had, after all, followed orders for journalist Siddique Kappan to be treated in Delhi, a clarification that the SC would not interfere with the high court’s orders regarding pandemic relief – a decision to revisit the legality of sedition under the IPC and a refusal of the Election Commission’s plea to restrict media reporting of judge’s oral remarks during cases.
Sadly, the Supreme Court’s decision on Friday, 18 June – that the Delhi High Court’s orders granting bail to Asif Iqbal Tanha, Natasha Narwal, and Devangana Kalita should not be considered precedent for now – shows us that there is a long way to go for the court still.
A Lack of Reasoning
A vacation Bench of Justices Hemant Gupta and V Subramanian made this decision on Friday after hearing brief arguments by Solicitor General Tushar Mehta (and ASG Aman Lekhi) on behalf of the Delhi Police, who have appealed the high court’s three orders dated 15 June.
While the Bench did not stay the high court orders (which would have been grounds to cancel the bail for Tanha, Narwal, and Kalita), it ordered that till the matter was heard by the Supreme Court in July, those orders “shall not be treated as a precedent and may not be relied upon by any of the parties in any of the proceedings.”
What this means is that the Delhi High Court’s orders cannot be cited by any other persons accused of offences under the draconian UAPA who are trying to obtain bail. This is extremely unfortunate as the high court judges, Justices Anup Bhambhani and Siddharth Mridul, had approached the tricky issue before them in a way that balanced the law and the fundamental right to personal liberty.
The Delhi Police believe that the people accused of orchestrating the Delhi Riots, including these three young activists, should not be granted bail before their trial because of Section 43D(5) of the UAPA. According to this section, judges cannot grant bail to people accused of terrorism offences under the UAPA, if there are reasonable grounds to believe that the case against the accused is prima facie true.
The Delhi High Court took full note of this provision of the law and of the fact that when conducting an analysis to see whether the case is prima facie true, the courts can’t sit and go over the merits and demerits of the evidence in detail. At the same time, they found that the specific allegations against Tanha, Narwal, and Kalita (which basically amounted to organising protests) did not merit terrorism charges. Hence, it said that the bar on granting bail under Section 43D(5) did not apply in their cases.
This was a truly significant moment in Indian jurisprudence on liberty and the right to protest, as there has been a recent trend among authorities to invoke UAPA charges against any and all dissenters, just so that they can be kept behind bars without trial.
The Supreme Court, however, took an utterly bizarre view of the case, thanks in part to the disingenuous arguments by the lawyers for the state – not the AAP government, it should be noted, but appointees of the Lieutenant Governor as requested by the Delhi Police.
During the hearing, the judges appeared to agree with Mehta and Lekhi’s argument that the Delhi High Court had read down the provisions of the UAPA so as to grant bail to the three accused. This argument is, however, flagrantly wrong. At no point in any of the judgments did the high court judges water down the provisions of the UAPA – instead, what they said was that the allegations did not fit the charges of terrorism.
To arrive at this conclusion, they looked at the Supreme Court’s own interpretation of the concept of terrorism, noting that there was a difference between criminality and terrorism. Not every criminal offence can be branded terrorism just because the police and the government feel so; this analysis does not amount to a reinterpretation of the UAPA and operates purely within the existing framework of the law.
This is a rather simple matter of logic and reasoning. So, for the Supreme Court to view the judgments as some sneaky attack on the UAPA is nothing short of bizarre.
More than bizarre, it is extremely disturbing that Justices Gupta and Subramanian view an attempt to examine whether grave charges against an accused person are justified by the police’s allegations as an unacceptable dilution of the law. Think for a moment of the consequences of this approach...
That the police have carte blanche to slap the most serious charges against a person, even if their own facts don’t justify these charges. That judges cannot put a stop to this even when they can clearly see that the charges make no sense. That these kind of charges, which are almost certainly going to fail at the eventual trial (Home Ministry data from 2016-2019 shows a 2.2 percent conviction rate in UAPA cases) will nonetheless see the accused spend years in jail without conviction.
Leaving the Law by the Wayside
Over and above the flawed reasoning, another thing which stands out about the Supreme Court’s decision is how what has been done doesn’t make much legal sense.
The direction that a judgment should not act as precedent has no basis in the Constitution or the Supreme Court’s own rules of procedure, or indeed in legal custom. The Supreme Court has passed such interim directions with increasing frequency in recent times, without ever really clarifying what the basis for this is.
To question this is not a matter of splitting hairs: this is the fundamental point of having a system based on the rule of law, that there have to be reasoned orders by courts based on authority granted to them by law.
While one could perhaps argue that this has been done by the Supreme Court using its wide powers to do “complete justice” under Article 142 of the Constitution, this has not been stated in the court’s order from Friday.
This kind of ad hoc decision-making is not what one expects from the highest legal authority in the country, especially since it has implications for courts around the whole country. This direction to not use the Delhi High Court judgments as precedent isn’t just restricted to these three accused or the other Delhi Riots cases, but all cases across the country.
The arguments and approach of the Delhi High Court deal with a fundamental question of misuse of the law to deny liberty, a question that is at issue in several cases. The Supreme Court has essentially tied the hands of courts to properly address that question till it arrives at a decision – which could take months if not years.
Again, this is not legal nitpicking: one of the basic principles of our legal system is the concept of stare decisis, that judgments of our courts of record act as precedent. For the Supreme Court to declare that a high court judgment will not act as precedent, without the said judgment being overturned or stayed, erodes this foundational concept without any explanation of how and why.
This is extremely damaging for an institution that is meant to provide certainty and guidance and uphold the rule of law, especially when it comes to matters of personal liberty. Indeed the normalisation of this firman-style decision-making has been one of the key criticisms of the apex court in recent years, especially in Ranjan Gogoi and SA Bobde’s tenures as the CJI.
At the end of the day, while there can still be relief that the court did not send Tanha, Narwal, and Kalita back to jail, the Supreme Court’s decision is grounds for extreme disquiet. Liberty is neither a concession nor some largesse to be granted to us by the government or the courts. Liberty is a matter of right, and decisions affecting liberty must be reasoned and in accordance with the law.
The Delhi High Court’s judgments showed they understood this. It’s high time the Supreme Court remembered it as well.
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