Protecting personal liberties

Better laws and a change in judicial approach are necessary for liberty to not remain merely a lofty, theoretical ideal.

Written by M S Ananth

Furthermore we understand that the care and concern bestowed by the State authorities’ upon the welfare of detenus who are well housed ,well fed and well treated, is almost maternal — Justice M.H. Beg, ADM, Jabalpur vs. Shivakant Shukla (Habeas Corpus case, 1976 – Supreme Court).

When the legality of the power of central government to detain people during an Emergency proclaimed under the Constitution was heard, the doctrine of Basic Structure had already taken shape. Ironically, only Justice Beg refers to the Basic Structure principles in the Habeas Corpus Case and dismisses the same as a principle of interpretation rather than checks and balances to government action. During the hearing, Justice H R Khanna questioned the powers of government to deprive liberty of persons — “Life is also mentioned in Article 21 and would Government argument extend to it also?” The Attorney General responded, “Even if life was taken away illegally, courts are helpless” — that is, during Emergency, persons detained could not secure relief from court. How much has changed since 1976?

In 2007, in I R Coelho (Dead) by L.Rs. vs. State of Tamil Nadu and Ors., a sequel to Keshavananda Bharati on the scope of amendment powers, the Supreme Court held that the “balance” between public good and individual liberty “…cannot be overturned by completely overriding individual liberty.” The Court considered the Habeas Corpus decision on a restrictive meaning to “life” as having been impliedly overruled. In Justice KS Puttuswamy (Retd.) and Anr. v. Union of India & Ors. (2017), the Supreme Court emphatically overruled the Habeas Corpus’ narrow interpretation of “life” and “personal liberty”.

Anti-terrorism laws have been tested against a stagnant standard of “right to life” before the Supreme Court came up with the “golden triangle” of fundamental rights in IR Coelho. In the challenge to Prevention of Terrorism Act (POTA) in 2003 (PUCL v. Union of India), the Supreme Court had upheld POTA. The Court upheld declaration of a group as a terrorist organisation even without giving the group an opportunity of being heard — even though Article 19((1)(c) recognises a fundamental right to form groups and association. However, the most absurd principle upheld by the Supreme Court in the context of terrorism and money laundering laws (PMLA) is that bail would be granted only if the “court is satisfied that there are grounds for believing that he is not guilty of committing such offence”. On the pretext of terrorism, exceptions control the rule.

In NIA v. Zahoor Ahmed Shah Watali (2019), we get a glimpse of Unlawful Activities (Prevention) Act (UAPA) and the right of bail. The illusory right is painfully obvious from the Court’s acknowledgement that the burden to be discharged by the accused is “arduous”. The accused would have to satisfy the test of innocence based on allegations in the FIR and material collected, even though the accused under law does not have access to all the documents. Investigation agencies are not bound under law to share material collected during investigation. In P. Chidambaram v. Directorate of Enforcement (2019) the Supreme Court reasoned that review by a judge of investigation material was adequate checks and balances. The system fails to take note of both doctored evidence (Kanhaiya Kumar’s case) and malicious prosecution (ISRO scientist S Nambi Narayanan).

The egregious dichotomy between the grandiose language used by the Court to describe personal liberty and reality is brought out in Justice D Y Chandrachud’s strong dissent in the arrest of Sudha Bharadwaj and others (even though none of them were mentioned in FIR No.4/2018 dated 08.01.2018) in Romila Thapar & Ors. v. Union of India (2018): “But lofty edicts in judicial pronouncements can have no meaning to a citizen unless the constitutional quest for human liberty translates into securing justice for individuals whose freedom is under threat in specific cases.” This incongruity is underscored in Chief Justice of India’s opening remarks at the First International Judicial Conference 2020 in February, 2020 that individual rights where at “the heart of the Constitution”. This was at a time people protesting against the Citizenship Amendment Act were arrested under UAPA.

It isn’t just arrest, but arrest without trial under UAPA and PMLA that is a concern. In the P Chidambaram case, cases were registered in 2017 and yet, when in 2019 Chidambaram was arrested, bail was denied. Trial is yet to commence. In the case of Sudha Bharadwaj and others, after two years, more arrests are being made with no visibility on commencement of trail.

The patent lack of respect for human life and dignity is painfully clear from the 2016 ruling on the dreaded Armed Forces Special Powers Act. In Extra Judicial Execution Victim Families Association v. Union of India (2016) the Supreme Court ruefully noted that out of 1,528 fake encounter cases, details were available only in 62 cases, and FIR was not registered even in one case. The NHRC had concluded that in 31 out of 62 cases, the encounter was not genuine.

The conspicuous gap in checks and balances is highlighted in Justice D Y Chandrachud’s powerful reference in his dissent to S.Nambi Narayanan v. Siby Mathews case where, after 24 years Nambi Naryanan was awarded compensation for malicious arrest and harassment. The state of Kerala was reluctant to investigate this egregious violation of basic human rights. For liberty to not remain a “lofty” and theoretical ideal, we need better laws and a change in judicial approach to personal liberty.

(The writer is a Delhi-based lawyer)

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