Civil Liberties Under Threat: Some Judges Offer Hope

In the midst of the judiciary's dismal track record in urgently addressing the State's authoritarian march, some judges offered a ray of hope. They stood by their oath to steadfastly and fearlessly uphold our fundamental rights. It is only right that we shine a bright light on those judges. As 2020 draws to an end, PARAS NATH SINGH for The Leaflet team details, in alphabetical order, the numerous judges that have stood out with some sterling judgments and what this means for jurisprudence. This is not a rating of judges but a listing of various rulings that are worth pondering about. This is essentially a collection of judgments and interim orders that have a significant bearing on advancing and protecting our constitutional rights.

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A judge of a constitutional court enters office after stating on oath that they would perform their duties without fear or favour, affection or ill-will and that they would uphold the Constitution and the law of the land.

If we were to assign a primary duty to a judge, it would be to protect the life and liberty of an individual and in a year when our lives and personal liberties were at stake the most, our highest constitutional court, unfortunately, underperformed.

By all accounts, the outgoing year has been a harrowing one. Not only did the lockdown that followed the outbreak of the Covid-19 pandemic wreak havoc on all aspects of our lives, but the Executive also continued to determinedly ride roughshod over the rights of its citizens when they were the most vulnerable.

In the midst of the judiciary's dismal track record in urgently addressing the State's authoritarian march, some judges offered a ray of hope.

Here, in alphabetical order, are the names of some of the judges that stood for Constitutional values and fundamental rights, in particular, the Right to Life and Personal Liberty as and when the occasion arose before them.

Justice Anup Jairam Bhambhani

Delhi High Court judge Justice Bhambhani has come out to be a pro-liberty judge. In an order passed by him granting bail to Ex-Ranbaxy Promoter Shivinder Singh in a money laundering case, he wrote "Nowhere is it in law that an accused, yet to be tried, is to be kept in custody only on a hunch or a presumption that he will prejudice or impede trial or send any message to society."

Justice Bhambhani, in one stroke, trashed the argument often put forth by the government that the release of an accused on bail will send a wrong message to society. Unfortunately, the bench led by Supreme Court judge Arun Mishra not only stayed the order without assigning reasons but also added that Justice Bhambhani's judgment not to be treated as precedent until further orders.

Also, in one case pertaining to the Delhi riots, Justice Bhambhani rejected the argument of the Delhi police that granting bail at an early stage may send an adverse message in society and that such crimes should not be allowed to happen in the national capital.

This cannot, Justice Bhambhani said, be the basis for denying bail if the court is otherwise convinced that no purpose in aid of the investigation and prosecution will be served by keeping the accused in judicial custody.

"Prison is primarily for punishing convicts; not for detaining undertrials in order to send any 'message' to society. The remit of the court is to dispense justice in accordance with the law, not to send messages to society," Justice Bhambani wrote while granting bail to Firoze Khan, accused in a case of rioting.

His order is reflective of a jurisprudence forgotten by many judges that bail is the norm and jail an exception.

While hearing a plea filed by civil liberties activist Gautam Navlakha – an accused in the Bhima Koregoan case, Justice Bhambhani asked the National Investigation Agency (NIA) to explain why it showed such "unseemly haste" in removing Navlakha from the "very jurisdiction of this court" when it was hearing his interim bail plea.

The NIA had whisked Navlakha away to Mumbai by train without informing his family or lawyer even as his application for interim bail was being heard by the Delhi high court.

The high court asked for all the papers used to transfer Navlakha away from Delhi to jail in Mumbai.

The NIA however, went in appeal to the Supreme Court and a bench led by Justice Arun Mishra yet again stayed the high court's interim order without assigning any reasons. Later, a Justice Mishra-led bench on July 6 set aside the interim order of the High Court and also expunged the observations made by Justice Bhambhani against the conduct of the NIA.

While the Supreme Court kept staying Justice Bhambhani's pro-liberty orders, Justice Bhambhani continued to display an approach behooving a judge of a constitutional court i.e., to take the Executive to task when it comes to safeguarding the liberty of citizens from Executive excesses.

Chief Justice AS Oka

In a case involving the right of an accused to a fair trial, a bench led by CJ Oka condemned a resolution passed by the Hubli Bar Association stating that no advocate associated to their Bar should represent the case of three Kashmiri students who were charged with sedition for allegedly raising pro-Pakistan slogans and posting them on social media.

Following the condemnation from the High Court, the Hubli Bar Association withdrew its resolution.

CJ Oka also ensured that the students' advocates from Bengaluru received police protection while traveling to Hubli and Dharwad to file applications for bail on behalf of their clients.

The right of an accused to be represented through an advocate is inherent in Article 21 of the Constitution. Thus, any resolution preventing advocates from appearing for the accused goes against the Constitution.

Justice Oka, rightly, prevented the violation of this right of an accused guaranteed by the Constitution.

In a decision which came as a setback to the Chief Minister of Karnataka, a bench headed by Karnataka High Court Chief Justice Abhay Shreeniwas Oka restrained the state government from en masse withdrawal of criminal cases against its elected representatives, including MLAs, MPs and ministers, such as JC Madhu Swamy, BC Patil, Anand Singh, Renukacharya, MP Pratap Simha, Independent MP Sumalatha Ambareesh and others.

On the issue of the migrant crisis, a bench of Chief Justice Oka and Justice Nagarathna took the view that considering the constitutional rights of migrant workers, no one should be deprived of an opportunity to go back to their own state only because they did not have the capacity to pay for their transport. The bench directed the state government to take immediate decision on the question of paying fares to the railways of those migrants who were unable to pay and work out a schedule for the same.

The State Government, in response, agreed to pay the rail fares. However, this was apparently only partially applied for migrant workers originally from Karnataka, who wanted to come back, and not the other way around. The Court in a subsequent order, where it was reiterated that constitutional rights were at stake, also questioned this policy.

Justice DY Chandrachud

Justice Chandrachud is a rare judge who also has a huge fan following and a fair share of foes. He often comes under criticism both from liberals and conservatives. Justice Chandrachud does what he has to do.

When he granted bail to Arnab Goswami, he faced stern criticism from a section of the public who accused him of going out of his way on behalf of the Republic TV anchor. What can't be argued with is his inclination towards individual liberty. He would have done it for anybody in place of Goswami.

More importantly, his judgment in the journalist's case has clarified the law and should guide the high courts in deciding pleas that seek to quash FIRs to grant bail. The judgment lays down that if a high court, while hearing a quashing petition under CrPC's S. 482, prima facie concludes that no case is made out, it can use its power under Art 226 to free an accused on bail.

The bench, which also had Justice Indira Banerjee, said high courts should not foreclose themselves from the exercise of their power when a citizen has been arbitrarily deprived of their personal liberty in case of state excesses.

In the Sudarshan TV case, Justice DY Chandrachud halted the broadcast of the show of what the channel termed the "infiltration of Muslims" in the Civil Services. The show, which targeted the Muslim community with communal slurs, innuendo and hate, did not find favour with Justice Chandrachud who said the object, intent and purpose of the programme was to vilify the community and was an insidious attempt to portray them as part of a conspiracy to infiltrate the civil services.

Chiding the channel for its 'anti-Muslim' show, the bench, which also had Justices Indu Malhotra and Justice KM Joseph, said it was doing the nation a great disservice by not accepting that India was a melting pot of diversity.

Justice Chandrachud ensured that the Government of India reviewed the show and took appropriate action to see if the remaining episodes could be broadcast.

Interestingly, the central government, which had initially allowed the broadcast of the show, has now found episodes of 'UPSC Jihad' to be offensive, with the likelihood of promoting communal disharmony.

It goes without saying it was Justice Chandrachud-led bench's hammering of the Centre repeatedly, which forced the government to take a U-turn in the matter.

Justice Chandrachud also has to his credit a pro-worker judgment, which he handed down this year. He quashed notifications issued by the Gujarat Government exempting adult workers from various provisions relating to weekly hours, daily hours, intervals for rest, etc. on grounds of 'public emergency' caused by the Covid-19 pandemic. He also directed that overtime wages be paid to all eligible workers who had been working since the lockdown notifications were issued.

"A worker's right to life cannot be deemed contingent on the mercy of their employer or the State. The notifications, in denying humane working conditions and overtime wages provided by law, are an affront to the workers' right to life and right against forced labour that is secured by Articles 21 and 23 of the Constitution", the bench said which also had Justices, Indu Malhotra and KM Joseph.

This ruling came as pushback against the trend seen during Covid19 lockdown when the state governments were actively considering exempting workers from the rights guaranteed to them under the statute.

Justice G R Swaminathan

Whenever any matter pertaining to free speech fell on his shoulder, the Madras High Court judge G R Swaminathan would unflinchingly lean in favour of freedom of speech and expression.

Earlier this year, while quashing criminal defamation proceedings against the Grievances Redressal Officer and The Editor of the Economic Times and as well journalist, Sandhya Ravishankar and her husband V Prem Ravishankar, the judge asserted that there was no point in merely singing paeans to freedom of the press if the court could not go to its rescue when that right faced with a serious threat.

Justice GR Swaminathan also penned a ruling that the Supreme Court's order extending the limitation period on account of the Covid-19 pandemic did not affect the right of an accused to get default bail. His ruling subsequently found favour with the Supreme Court.

Recently, Justice Swaminathan issued a slew of directions to ensure transparent investigations around unnatural deaths. He said a dead person is equally entitled to justice.

Chief Justice Govind Mathur

Justice Govind Mathur, the Chief Justice of Allahabad High Court, stood out for his judgements in two cases in which the Uttar Pradesh Government's stake was high.

First, a bench led by CJ Mathur in suo motu proceedings on March 9, ordered the removal of hoardings that had surfaced in Lucknow displaying the names, photos and addresses of those accused of instigating violence during the protests against the anti-Citizenship Amendment Act (CAA). Justice Mathur held that the UP government could not have placed banners containing the personal data of individuals out in public view without the authority of the law.

The bench, which also had Justice Ramesh Sinha, found the UP government's action an unwarranted interference in a person's privacy.

The UP government was so invested in the case that it carried the matter to the Supreme Court the very next day.

Though the top court admitted the plea, it did not stay the High Court order. Yet the UP government in total defiance of the High Court order chose not to remove the banners.

A few months down the line, Justice Mathur gave yet another jolt to the UP government when he quashed the detention of Dr Kafeel Khan under the National Security Act (NSA). The Court called the detention order bad in law.

The Justice Mathur-led bench thoroughly examined the speech given by Dr. Khan at Aligarh Muslim University (AMU) for which he was detained under NSA, and said nowhere did the speech threaten the peace and tranquillity of the city of Aligarh. It observed.

"The address gives a call for national integrity and unity among citizens. The speech also deprecates any kind of violence. It appears that the District Magistrate had a selective reading and selective mention for few phrases from the speech ignoring its true intent."

In this case,  not just the UP government but the Centre also unsuccessfully filed an appeal in the Supreme Court.

Justice John Michael Cunha 

Karnataka High Court judge, Justice Michael Cunha early this year granted bail to 22 people accused of violence that took place on December 19 in Mangaluru after police opened fire on a crowd protesting against the Citizenship Amendment Act (CAA).

Justice Cunha castigated the police and said: "The records indicate that (a) deliberate attempt has been made to trump up evidence and to deprive the liberties of petitioners by fabricating evidence. There is no direct evidence to connect the petitioners with the alleged offences. The investigation appears to be mala fide and partisan."

Justice Cunha also came down heavily on the police for not identifying each of the accused, but for merely alleging that they were involved in the incident based on their affiliation to the Popular Front of India (PFI) as well as their belonging to the Muslim community.

"In an offence involving a large number of accused, the identity and participation of each must be fixed with reasonable certainty. In the present cases, a perusal of case records produced by the learned SPP-I indicates that the identity of the accused involved in the alleged incident appears to have been fixed based on their affiliation to PFI and they being members of Muslim community," Justice Cunha further said.

The State government appealed to the Supreme Court against the High Court. A bench led by Chief Justice of India SA Bobde stayed the High Court order without giving any reasons. It was only after six months from March that the Supreme Court allowed the release of the accused persons when they moved an application seeking interim bail. The appeal against the High Court order is still pending.

Justice Pankaj Naqvi

At a time when the chorus against inter-faith marriages in the name of so-called love jihad has gained momentum, a bench led by Justice Pankaj Naqvi overruled the decision of High Court in Noor Jahan Begum @ Anjali Mishra and Another vs. State of U.P. and Others and followed in Priyanshi @ Km. Shamren and others Vs. State of U.P. and Another which had laid down that conversion to another religion just for the sake of marriage was unacceptable.

Holding the decision in Noor Jahan Begum to be bad in law, Justice Naqvi and puisne judge on the bench, Vivek Agarwal, said to disregard the choice of a person who is of the age of majority would not only be antithetical to the freedom of choice of a grown-up individual but would also be a threat to the concept of unity in diversity.

The bench said Noor Jahan Begum did not deal with the issue of life and liberty of two mature individuals in choosing a partner or their right to freedom of choice regarding who they would like to live with.

Justice Naqvi's ruling was a big setback to the ruling government in Uttar Pradesh for it had been citing the high court's decision in Noor Jahan Begum to argue in favour of the law against the so-called love jihad. Despite Justice Naqvi's order, the UP government went ahead with the Ordinance criminalising religious conversions by marriage.

In yet another case, the same bench safeguarded the liberty of a Muslim man who was accused of forcing the wife of a complainant to change her religion for the purpose of marriage the former. The Court said there was no material on record to indicate that any force or coercive methods were adopted by petitioner Nadeem to convert the wife of the informant.

This order is significant because the accused was booked under UP's love jihad ordinance and notwithstanding it, Justice Naqvi relied on the decision of the Supreme Court in Justice Puttaswamy and others Vs. Union of India (UOI) and Joseph Shine Vs. Union of India, to state that the issue of the right to privacy had been held to include the exercise of autonomy and agency by individuals – in this case, the adult woman in question.

Justice Naqvi recently quashed an FIR against a man booked for tweeting against Uttar Pradesh chief minister Adityanath.

The FIR lodged by the police alleged that the petitioner from his twitter handle allegedly remarked that the Chief Minister of the State had transformed the State into a jungleraj in which no law and order prevailed. It also referred to various incidents of abduction, demands of ransom and murders.

Quashing the FIR, Justice Naqvi and pusine judge Vivek Agarwal said "Expressing dissent on law and order situation in the State, is a hallmark of a constitutional liberal democracy like ours, constitutionally protected under Article 19 of the Constitution".

Justice Rajan Roy

The horrific Hathras gang rape shocked the Allahabad High Court judge Justice Rajan Roy so much that he felt constrained to take suo motu cognizance of the high handedness of the UP police in cremating the dead body of the rape victim in complete violation of the basic human and fundamental rights of not only of the deceased victim but also of her family members.

"The deceased victim was treated with extreme brutality by the perpetrators of the crime and what is alleged to have happened thereafter, if true, amounts to perpetuating the misery of the family and rubbing salt in their wounds," said a bench of Justices Rajan Roy and Jaspreet Singh.

Justice Roy summoned high-ranking officials of the UP police and directed the state authorities to ensure that no coercion, influence or pressure was exerted upon the family members of the deceased in any manner, by anyone.

Justice P.N. Prakash

A Justice PN Prakas-led bench of the Madras High Court early this year took suo motu cognisance of the horrific custodial death of a father and son in Tuticorin.

The bench, which also had Justice B.Pugalendhi, not only took suo motu cognisance, but also monitored the probe into the death of the duo.

As a first step, it directed the Tirunelveli District administration to provide necessary infrastructure and support to the Judicial Magistrate, Kovilpatti, for conducting the inquest and without any interference whatsoever in his work. The bench ordered the that post-mortem of the dead bodies to be done by a team of three experts and the same be videographed.

The bench also ensured the preservation of clues and for that purpose directed the requisition of forensic experts, if needed.

Later the bench allowed the transfer of the probe to the CBI.

According to reports, the CBI has filed a chargesheet against nine Tamil Nadu police officers, including the then station house officer (SHO) of Sathankulam police station in Thoothukudi, for criminal conspiracy, murder, wrongful confinement, destruction of evidence and levelling of false charges.

Had it not been for the High Court stepping in, the probe may have been botched up at the local level itself given that the accused are the police officials who weild huge influence.

Justice Rohinton F Nariman

A pro-liberty Supreme Court judge, Justice Rohinton Nariman last month handed down a significant ruling that said that officers appointed by Central and State agencies, who were invested with powers under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, were "police officers" within the meaning of section 25 of the Evidence Act. As a result, confessional statements made to them could not be taken into account to convict an accused under the NDPS Act.

Section 25 of the Evidence Act makes a confession before a police officer inadmissible in evidence.

The judgment came at a time when NCB was probing the Bollywood drugs case and arresting Bollywood actors.

Justice Nariman's ruling will help in setting free from jail an accused person who has been languishing in custody based on inadmissible statements.

According to a report published in the Indian Express, the ramifications of Justice Nariman's ruling are that around 20 statements recorded by the NCB, including that of actor Rhea Chakraborty, in the alleged drugs case linked with Bollywood, will now not be admissible as evidence before the court.

This judgment, in a way, also puts a question mark on the artificial construction of legislation that officers of investigation agencies such as Enforcement Directorate are not police officers and thus the statement made before them is admissible. Sooner or later, the Court may have to decide this issue in the context of the ED as well.

Justice Nariman who was also joined by Justice Navin Sinha on the bench emphasised that the interpretation of a statute like the NDPS Act must conform and be broadly in tune with the spirit of the fundamental right not to incriminate oneself, and the right to privacy. Justice Indira Banerjee disagreed with the judgment.

In yet another case, a bench led by Justice Nariman directed all States and Union Territories (UTs) to ensure that CCTV cameras are installed in every police station.

Significantly, the bench which also had Justices KM Joseph and Aniruddha Bose also directed the Central Government to install CCTV cameras and recording equipment in the offices of Central Bureau of Investigation (CBI), National Investigation Agency (NIA), Enforcement Directorate (ED), Narcotics Control Bureau (NCB), Department of Revenue Intelligence (DRI), Serious Fraud Investigation Office (SFIO) and any other agency that carried out interrogations and had the power of arrest.

This judgment strikes at the very heart of police brutality and aims to ensure that the human rights of the accused are not compromised by police action.

In one of the cases, the Justice Nariman-led bench granted bail to an accused facing trial under the Unlawful Activities (Prevention) Act 1967 (UAPA) and had been in jail for over six years.

Justice S Muralidhar

On the intervening night of February 25-26 when communal riots engulfed Northeast Delhi, a bench led by the Delhi High Court judge, Justice S Muralidhar, held a special sitting to direct the Delhi police to ensure safe passage to injured victims and provide emergency treatment at government hospitals. It was alleged that the entry of ambulances carrying victims of the violence was being denied safe passage from Al-Hind hospital to other government hospitals.

In a morning session, a Justice Muralidhar-led bench, which also included Justice Talwant Singh, pulled up the Delhi police for not taking any action against Bharatiya Janata Party (BJP) leaders Kapil Mishra, Anurag Thakur and Parvesh Sahib Singh for their alleged inflammatory speeches. The bench made the Delhi police play their inflammatory videos in the courtroom and asked the police officers why no FIR had been lodged against them.

The courage and conviction of Justice Muralidhar led to his immediate transfer to the Punjab and Haryana High Court. Though the Collegium had recommended his transfer on February 12, the Centre notified it only on the evening of February 26 – the day Justice Murlidhar castigated the BJP leaders and the Delhi police for their role in the Delhi riots.

The next day, the matter went back to the Chief Justice of the High Court. And what followed thereafter is there for everyone to see. The Delhi police took no action against the BJP leaders and the High Court did not feel compelled to force the police to take the action against them.

The Delhi Minorities Commission, in its fact-finding report, made scathing remarks against the Delhi police for its role in the Delhi riots, suggesting that the "failure to prevent communal violence was not due to individual or sporadic breaches, but was a pattern of deliberate inaction over several days."

Apart from those named above, a number of judges safeguarded the life and liberty of members of the Tablighi Jamaat who were dehumanised and called "super spreaders" of Covid19. They had to face the abuse of the legal process and eventually, most of the cases against them were thrown out by the court.

Three different benches of the Bombay High Court comprising Justices Z.A. Haq and Avinash G. Gharote; Justices T.V. Nalawade and M.G. Sewlikar and V. M. Deshpande and Amit B. Borkar quashed FIRs against members of Tablighi Jamaat, accused of spreading Islam in breach of their tourist visa and also for violating lockdown guidelines.

A bench led by Justice Nalawade went on to say "a political government tries to find a scapegoat when there is a pandemic or calamity and the circumstances show that there is a probability that these foreigners were chosen to make them scapegoats".

The bench also slammed the media for holding Tablighi foreigners responsible for the spread of Covid-19 in India.

Recently, the Patna high court quashed an FIR filed against 18 Bangladeshi and Malaysian nationals arrested from Araria district of Bihar for violating visa rules during the nationwide lockdown triggered by the outbreak of COVID-19

Justice Rajeev Ranjan Prasad held that there was no basis to prosecute them for a violation of the Foreigners Act.

In one of the cases, Allahabad High Court judge Justice Ajay Bhanot observed that the attempt to slap a murder charge against a Mau resident who participated in a religious congregation organised by the Tablighi Jamaat in March was reflective of an "abuse of the power of law".

Justice Bhanot sought a personal affidavit of the Circle Officer showing how the ingredients of Section 307 IPC were made out from the facts on the record and from the material collected during the investigation and justify the amendments directed by him to the charge sheet.

The year 2020 will likely go down as the year a majoritarian state goose-stepped towards authoritarianism as it went about suppressing dissent, stomping on our fundamental rights and civil liberties, tearing away at our social fabric and undermining our Constitution. These judges offer us the hope we so desperately need.

We all hope to see a new India emerge in 2021 where the judiciary will stand up to protect the Constitution and secure the rights of people that it guarantees.

(Paras Nath Singh is a Delhi-based lawyer.)