In recent times, the Supreme Court has employed judicial evasion to avoid dealing with tough questions of life and liberty in bail matters, writes Mohd. Talha Hasan.
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“I do not think that it was ever intended that Parliament could, as its will, treat the normal as the abnormal or the rule as the exception.”
— Justice Fazl Ali (dissenting) in A.K. Gopalan versus State of Madras
IF we look at bail jurisprudence in preventive detention, the balance of the scales in the relationship between the rights of the citizens and the State is often heavily tilted towards the State.
Clause (2) of Article 22 of the Constitution makes it binding upon the State that every arrested person be produced before a judge within twenty-four hours of their arrest.
It is presumed that this has to be done in order for the judicial authority to overview the executive actions, but Clauses (3) to (7) of Article 22 provide exceptions to Clause (2) in cases of “preventive detention”.
As argued by Professor Baxi in 1982, criminal adjudication in India functions in two parallel systems administrating justice. Firstly, the criminal justice system, where the due process of law is followed, contains checks and balances in the form of judicial review.
What if the courts are turning a blind eye towards some politically sensitive cases where there is an infringement of rights?
Secondly, the preventive detention system where the salient features of the former are mostly absent. This absence of checks and balances is not expressly given in the Constitution, but it is the interpretation and the jurisprudence evolved by the courts that have resulted in the executive being supreme.
The imbibition of executive supremacy started from A.K. Gopalan versus State of Madras, in which the Preventive Detention Act, 1950 was upheld.
This was carried forward in ADM Jabalpur versus Shivkant Shukla, Kartar Singh versus State of Punjab, PUCL versus Union of India and Naga People’s Movement for Human Rights versus Union of India.
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The courts made the executive supreme by granting them the power to decide the ‘exceptional circumstances’ which not only warrant the application of preventive detention laws but also the ‘extent’ of fundamental and civil rights available to the citizens during such times.
It, therefore, becomes the duty of the courts to scrutinise the justifications produced by the State according to constitutional principles. As discussed above, the practice of judicial review has mostly given an upper hand to the executive and, sometimes, a complete absence of this practice has led to certain alarming questions.
What if the courts are turning a blind eye towards some politically sensitive cases where there is an infringement of rights? For example, the habeas corpus petition of Sitaram Yechuri challenging the house arrest of the then Jammu and Kashmir member of legislative assembly Mohammed Yousuf Tarigami, where there was a prima facie violation of Articles 14, 19 and 21, as Tarigami was detained without following the due process of law, and the test of a just law laid down in Maneka Gandhi versus Union of India, i.e, the law should be ‘just’, ‘fair’ and ‘reasonable,’ was not satisfied at the face of the detention.
Having taken almost four years to dispose of the petition, sadly the court failed to do its duty. Such actions of the judiciary where it does not hear certain matters for so long that the subject matter becomes infructuous, as seen in the Tarigami case, is “judicial evasion”.
This term has been defined by the Constitutional scholar Gautam Bhatia as: “By keeping a case pending and delaying adjudication, the court effectively decided it in favour of one of the parties (most often, the party in a stronger position, i.e., the government), simply by allowing status quo to continue.”
Recently, in his blog, Bhatia opined that this definition of ‘judicial evasion’ is not exhaustive. It does not include the possibility of courts giving a better playing field to the executive.
Judicial evasion can also include not holding the State accountable for its actions, a phenomenon that can have an ever-lasting impact on personal liberties.
Judicial evasion can also include not holding the State accountable for its actions, a phenomenon that can have an ever-lasting impact on personal liberties.
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The bail order of Sanjay Singh, an accused in the ‘liquor policy’ scam, can be treated as one such example. Firstly, when one takes into consideration the courtroom exchanges, a grave picture emerges because the court, in the morning session, was certainly of the opinion that there was no prima facie case against the petitioner.
If the matter were to be heard on merits, then the court would have had to record certain observations about Section 45 of the Prevention of Money Laundering Act (PMLA), 2002 which lays down the twin-test for bail, making it practically impossible to procure bail.
Therefore, the court itself asked the respondent to take instructions from the investigation agency regarding contesting the bail application. Very conveniently, the Enforcement Directorate informed its counsels that they had no objection to the bail application and in the post-lunch session the said Order was passed.
Secondly, the bail order cannot be treated as precedent, and it was passed only after the respondent did not object to the bail application. The question here is: Why did the court itself ask the respondents to take instructions?
Had the court recorded its observations regarding Section 45 of the PMLA, it might have been used to procure bail by other incarcerated Aam Aadmi Party politicians. It might also have been used during the proceedings where the constitutionality of certain Sections of the PMLA are challenged, but sadly these are now just mere speculations.
Giving a better playing field to the executive is not the harshest criticism that the court might receive. In fact, this approach of the court favouring the executive is backed by the Latin maxim, ‘Salus populi suprema lex’, i.e., let the welfare of the people be the supreme law.
Two fine examples of this maxim in action are the Supreme Court verdicts in the ADM Jabalpur and PUCL cases, where the courts certainly accepted that preventive detention laws are to protect people and the constitutionality of many preventive laws was upheld.
Even a corollary of this maxim, i.e., a mere possibility of abuse of power is not a sufficient ground to strike down a statutory provision as unconstitutional, has acquired the force of law after countless repetitions.
The core problem with this judicial practice is that the court gives a green flag to the executive’s actions while choosing not to give a reasoned judgment. A judgment being in the public domain remains open to criticism and this judicial practice ends up saving the executive’s face as it is given a signal to carry on.
This practice of not hearing of cases or partly hearing cases where the Order passed does not provide any coherent reasoning for the actions to ‘continue till further orders’ has profound ramifications on fundamental rights and civil liberties.
Had the court recorded its observations regarding Section 45 of the PMLA, it might have been used to procure bail by other incarcerated Aam Aadmi Party politicians.
Seeing the approach of the court, one finds it difficult to believe that this is the very court that held in Shreya Singhal versus Union of India that even revolutionary or anti-government views are protected by Article 19(1)(a) and do not fall under the clause (2) of Article 19.
If a mere dissent, in the world’s largest democracy, can result in persons spending years of their lives behind bars as under-trial prisoners, the expectations from the constitutional courts increase.
When the actions of the executive to deprive citizens of their rights have no checks and balances and the judiciary, not hearing such cases, asks for justifications for the restriction placed upon the rights of the individual, the present and the future of fundamental and civil rights seems exceedingly bleak.
It is at the core of constitutional jurisprudence that there is a necessary obligation upon the State to provide reasons justifying its curtailments of civil rights before a court of law. It is, then, the duty of the judiciary to test those justifications upon the threshold of fundamental rights and reasonable restrictions to see whether the curtailment of rights was justified.
In politically sensitive cases where the government has high stakes, and it is beneficial for them to keep a person behind bars, the approach of the Supreme Court is quite disheartening to see.
The court has a duty to protect the rights of the citizen. When the court applies the doctrine of ‘judicial evasion’, it is simply forgoing its duty as a constitutional court.
“The trust of the common citizen in the judiciary eroded significantly,” these words of Justice A.S. Oka should compel every student of law to ponder upon the present situation.
The withdrawal of Umar Khalid’s bail application after countless adjournments is another example where the court following this doctrine has either made the subject matter infructuous or set a very upsetting example in personal liberty jurisprudence.
“The trust of the common citizen in the judiciary eroded significantly,” these words of Justice A.S. Oka should compel every student of law to ponder upon the present situation and ask this question: what example is the Supreme Court setting for the future where personal liberties of the citizens are victims of judicial evasion?
