Though the Supreme Court asserts that "liberty is not a gift for a few", there have been more than a few instances of different treatment of "similarly circumstanced people". These double standards create a divide between various sets of people, wherein the ones with influence are accorded special treatment, while other undertrials languish in jails awaiting justice.
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THE Supreme Court has noted more than once that "equal protection" guaranteed under the Constitution means that "all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed".
The decisions of the court upholding constitutional morality contain reassurances for the people that they live in a country which is governed by a document that embodies the rule of law and accords equal protection of the law to all people.
But such assurances are often abraded when the State encroaches or attempts to encroach upon the rights of people.
To assuage the abrasion, the judiciary steps in and acts as a protector of constitutional rights. It ensures that State machinery works in accordance with the rule of law and nobody is deprived of their rights.
Time and again, the Supreme Court has fulfilled this commitment. Be it the cases of emergency, political distress or media outrage, the courts have never stepped away from hearing the plea of the one in need.
“In the three cases, the most striking difference was the applicability of anti-terror laws. Though some people refer to these individuals as 'anti-nationals', they have not been subjected to anti-terror laws, except for Umar Khalid.
The judiciary has tried to fulfil its commitment by working even beyond the normal working hours of the court.
Though this commitment is laudable and praiseworthy, there have also been instances that hint at double standards in keeping the commitments granting equal protection as mandated under the Constitution.
To explore the acts of double standards in detail, there is a need for comparison of three cases, involving Teesta Setalvad, Arnab Goswami and Umar Khalid.
This article will majorly focus on the bail Order and interim relief granted in the cases.
On July 1, after a dramatic late-night hearing, Teesta Setalvad was granted an extension on her interim bail by the Supreme Court after the Gujarat High Court had rejected her bail application earlier on the same day.
Setalvad was sought to be arrested on charges of falsification of evidence in connection with the 2002 Gujarat riots. The court, without going into the merits, opined that the arrest Order of the high court was unjustified in not granting even a week's time to Setalvad to bring an appeal against the Order.
It is to be noted that even though it was not a unique instance where the court had granted interim relief and given time to apply for regular bail, the gravity accorded to this instance was unique.
The number of events taking place in a single day are surprising— the bail petition was rejected by the Gujarat High Court at 11:00 a.m. on July 1. By the evening of the same day, the legal team of Setalvad had approached the Supreme Court.
On the same day, a division Bench was constituted to hear the special leave petition (SLP) filed by Setalvad, challenging the Order of the high court. However, due to a lack of consensus, the division Bench referred the case to a larger Bench.
Now comes the interesting part, the Chief Justice of India, Dr D.Y. Chandrachud, on the same day, constituted a special three-judge Bench, led by Justice B.R. Gavai and comprising Justices A.S. Bopanna and Dipankar Datta, to hear the plea that night.
The three-judge Bench, while noting that "the petitioner was a lady and is entitled to a special protection under Section 437 of the Criminal Procedure Code (CrPC)", granted the relief.
Arnab Goswami's case followed a similar pattern. Goswami was arrested on charges of abetment to suicide. The Bombay High Court rejected the interim bail application on November 5, 2020, on the ground that another efficacious remedy exists and the applicant was at liberty to approach the court under Section 439 CrPC.
Next day, an SLP was filed in the Supreme Court. Despite being marked as defective by the registry, the SLP was listed to be heard on the very next day.
On November 11, 2020, a division Bench of the Supreme Court heard the petition and observed that the high court had erred by not granting the relief. "There exists a disconnect between the first information report and the offence," the court observed.
“The selective applicability of liberty questions the idea of equality among equals. The differential treatment, here, is what is called double standards.
The oversight by the high court is not what makes this instance important, but the next-day listing does. No norm exists for a next-day listing. The instance of next-day listing in Goswami's case can pose as a far-fetched similarity to mentioning.
Mentioning is a process where you showcase why a matter is urgent and require a prompt redress. The procedure requires a two-tier clearance before the court can look into it.
Now, moving on to Umar Khalid's case. Umar Khalid was arrested on September 13, 2020 and since then he is languishing in jail. Khalid was arrested on the charges of conspiring in the Delhi riots and engaging in terrorist activities.
The session's court and the high court denied him bail in March 2022 and October 2022, respectively, and observed that a prima facie case exists against Khalid.
Also read: As Dr Umar Khalid completes 1,000 days behind bars, it is the justice system which is on trial
When Khalid approached the Supreme Court on April 6, 2023, his case got listed for May 18, 2023 and finally, on this date, the Supreme Court issued notice to the Delhi police. Though the Bench was inclined to grant Khalid liberty to present his plea before the vacation Bench, the petitioner chose to be heard after vacations. Now, the bail application is listed for July 24.
The above-mentioned instances makes us wonder— Why such discrepancies? Why has the Supreme Court handled petitions in an uneven manner?
Do these instances not showcase that people in similar circumstances are treated in a dissimilar manner?
On the face of it, it may seem that all these instances differ significantly, thereby warranting different kinds of intervention by the Supreme Court. But the detail of these instances sets out their resemblance with each other.
All things considered, the cases are related to curtailment of individual liberty, where the offences alleged by the State were not yet proven and the investigation was completed.
In the three cases, the most striking difference was the applicability of anti-terror laws. Though some people refer to these individuals as 'anti-nationals', they have not been subjected to anti-terror laws, except for Umar Khalid.
In accordance with the requirement of anti-terror laws, the high court had justified the refusal of Khalid's bail by finding that there exists a prima facie case against him. These dreaded anti-terror laws make bail an exception, jail the norm.
There are instances where despite such justification and statutory restriction, the courts have granted bail on the ground of violation of fundamental rights. In Union of India versus K.A. Najeeb, the Supreme Court had held that despite the restrictions of The Unlawful Activities (Prevention) Act, 1967, if the fundamental rights stand violated, the courts can grant bail.
The trial of Umar Khalid has been pending for the last two years. Is his right to speedy trial not guaranteed under Article 21 getting violated?
The proceedings in the bail application of Goswami and Setalvad heavily focused upon liberty. One of the justices in Goswami's case even went to the extent of remarking that: "Deprivation of liberty even for a single day is one day too many".
This interpretation was applied both in Goswami and Setalvad's case when they were granted bail within a day and a few hours respectively.
“This interpretation was applied both in Goswami and Setalvad's case when they were granted bail within a day and a few hours respectively. But why not Umar Khalid or any other undertrial prisoner, for that matter?
But why not Umar Khalid or any other undertrial prisoner, for that matter?
Interestingly, in the last 73 years, there have been only a handful of instances where the Supreme Court conducted midnight hearings for granting bail.
Lalit Mohan Thapar was an industrialist, convicted for violation of foreign exchange regulations. He was granted bail by the Supreme Court in a late-night session held at Justice Venkataramiah's residence.
This Order was challenged in the case of Bihar Legal Support versus Chief Justice of India, where the petitioner contended that the court should impart similar importance to "small men" as accorded to the big industrialist.
The court disposed of this petition observing that the "small men are entitled to the same importance and the court has always regarded these people with a preferential consideration than the rich."
But such clarification stands negated by the court's own acts time and again. People like Setalvad, Goswami and Thapar are influential people. They hold a certain status in the society and hence get preferential treatment.
This preferential treatment not only arises from influence but also from engaging eminent lawyers. By taking a careful look at the lawyers involved in such proceedings, one can itself determine what kind of standards prevail.
Even if we were to believe in the statements made by the court such as "Liberty is not a gift for a few", "if we do not act in matters of personal liberty and grant relief then what are we doing here?", "Deprivation of liberty even for a single day is one day too many", the story of the tens of thousands of undertrials speaks otherwise.
“In accordance with the requirement of anti-terror laws, the high court had justified the refusal of Khalid's bail by finding that there exists a prima facie case against him. These dreaded anti-terror laws make bail an exception, jail the norm.
According to the National Judicial Data Grid, there are more than 46,000 undertrials in Delhi alone. The Prison Statistics of India, 2021 states that 427,165 people are undertrial around the country. The statistics also discloses that around 11,000 individuals have remained behind bars as undertrial for a period of more than five years.
What the Supreme Court has done in the Teesta Setalvad and Arnab Goswami cases is not wrong. It is the way things should be. The need of the hour is to extend the same rigour of fairness to all undertrials awaiting justice across the length and breadth of the country.
We must remember the words of Dr B.R. Ambedkar: "Equality may be a fiction but nonetheless one must accept it as a governing principle."