Something strange transpired in the Supreme Court (SC) this Tuesday. On the morning of 28 February 2023, senior advocate Dr Abhishek Manu Singhvi mentioned the plea of Manish Sisodia, the deputy chief minister of Delhi, before a bench comprising the Chief Justice of India (CJI) for an urgent hearing.
Manish Sisodia has been remanded to the custody of the Central Bureau of Investigation (CBI) till 4 March in an alleged case of irregularities concerning the framing and implementation of the now-scrapped Delhi excise policy for the year 2021-22.
Even though the CJI observed that the petitioner was yet to avail the alternative remedies before the jurisdictional High Court, he agreed to hear the petition later that day.
However, when the matter was actually heard later in the day, the CJI refused to entertain the petition, citing that Article 32 of the Constitution of India cannot be used to, inter alia, challenge remand and seek bail, and that Sisodia had not exhausted the option to approach the relevant High Court.
Dr Singhvi’s plea that the case involved ‘exceptional circumstances’ and therefore warranted intervention of the highest court was not entertained.
But two pertinent questions arise for consideration:
1. Why did the Supreme Court not dismiss the petition in the morning itself, when the matter was mentioned, and when the CJI had made his reservation known to the petitioner?
2. How does one determine which ‘exceptional circumstances’ are legitimate in the eyes of the apex court?
While efficiency in judicial work should not be conflated with justice itself, time is of utmost essence in cases involving detention and arrest. Thus, if the SC has made up its mind about an impugned issue, it should pass swift directions rather than going into protracted meaningless hearings, something which happened on Tuesday.
Not only will this save the precious time of the court, but also set standards for rights adjudication in the country. But without diminishing the significance of this first issue, let us examine the second question for the purposes of this piece.
The Curious Case of 'Exceptional Circumstances'
In Tuesday's hearing, Dr Singhvi relied on a few custody cases, specifically those of journalists Prashant Kanojia and the late Vinod Dua, and television personality Arnab Goswami, wherein the Court had intervened to order release and/or quash cases with a view to uphold personal liberty.
The Bench, however, distinguished these cases by employing a very unconvincing metric – it was orally observed that while Vinod Dua’s case involved issues of journalistic freedom, the present case could not be accorded same treatment, as it related to offences under the Prevention of Corruption Act, 1988.
Prima facie, there is no basis to this artificial distinction drawn by the SC.
An argument may be made that the earlier cases pertained to offences which collided with freedom of speech but it would still not answer why there should be a differential treatment of cases when what is at stake is the same intangible personal liberty of an individual.
This predicament, therefore, begs the same question which we have identified in the introduction: What are the factors which the SC takes into account to determine ‘exceptional circumstances’, which deserve intervention by the top Court?
Not to mention, this open question lays bare the concerning lack of predictability in the functioning of our Supreme Court, especially in matters directly concerning personal liberty and freedom of individuals.
Why Is Consistency Important?
The Supreme Court of India is a court of record, which is to say that the observations and decisions of his court form a part of a perpetual repository, and can be relied upon by the lower courts – as well as the top court itself – to seek guidance on issues involving same or similar factual and legal questions.
This record-keeping of precedents creates predictability in judicial adjudication, and allows a potential petitioner to assess whether his claim would be successful before a court of law or not.
In other words, predictability in decision-making leads to legal certainty, which in the long run, forms an edifice of the credibility of the institution.
A corollary of the above is that the SC cannot speak with a forked tongue, that is to say, there cannot be inconsistency in adjudication, where the facts-in-issue require similar treatment.
More so, in cases involving crucial fundamental rights, personal liberty (such as bail hearings) require a higher degree of scrutiny and identifiable determinants, which can facilitate a realistic evaluation of the fate of a petition before the apex Court.
Equally important in such cases is efficiency, and usage and allocation of judicial time (here, I redirect your attention to the first question identified in the introduction).
Unfortunately, developments in this direction are bleak, as is evident from what happened in the case of Manish Sisodia on Tuesday:
The SC order summarily states that the petition stands disposed “since the petitioner has efficacious alternate remedies available under the provisions of the Code of Criminal Procedure 1973," without going into why the factual matrix in this case did not necessitate SC interference, when the same court deemed appropriate to interfere in other cases with similar prayers for relief.
This was an ideal opportunity for the top court to provide well-defined and harmonious reasoning and clarify the contours of rights-adjudication at SC which, for now, is lost. Poorly reasoned orders only add to the bulk of unsettled jurisprudence in Indian law.
What’s worse, contradictory precedents erode public trust in the institutions imparting justice.
Sisodia’s Case: Some Glaring Gaps
Additionally, there are many details which make Manish Sisodia’s sudden arrest on Sunday dramatic.
At the outset, the arrest falls foul of the mandate of the SC in Arnesh Kumar, which lays down that a person accused of offence punishable with imprisonment for a term which may extend to seven years cannot be arrested.
Sure, there are certain considerations which are to be kept in mind for extending the benefit of Arnesh Kumar - including proper investigation of the case, presence of the accused before the judicial forum whenever required etc.- but as has been admitted by all stakeholders concerned, Sisodia had joined the investigation of the case on two earlier occasions since the filing of FIR against him in August 2022.
As a public figure holding portfolios in the Delhi Government, he was also not likely to abscond.
The absurd reasoning of the Rouse Avenue court to extend his detention- that Sisodia has failed to ‘satisfactorily and legitimately explain the incriminating evidence against him’- defies ordinary logic, and deserves categorical rejection by the High Court in the interest of the right against self-incrimination.
The role of the office of the Lieutenant Governor of Delhi (LG) in the whole fiasco also merits discussion.
While the excise policy of 2021 had received the nod of the office of the LG at the inception, the same office, a few months later, recommended a CBI probe against Manish Sisodia, basis a report which alleged that the policy was in violation of statutory provisions and had adverse financial implications.
It may be too early to comment on the legal implications of the LG’s role in the approval process, but a dramatic change in stance by a public office raises legitimate questions of ethics and misadministration. It also does not require a degree in political science to decipher that continuity in the affairs of the office of the LG became a clear casualty in this case, for reasons best known to the esteemed office.
What Is at Stake Here?
A court of law can quite often become an arena for competing political awareness, and it would not be prudent on our part to assume that our SC is not aware of this realpolitik.
Thus, while administering justice, the apex court must also take into account the power dynamics at play between the competing parties.
More so, the Court must be wary of doing randomised justice, one which seems to have emanated from whim or caprice, and not from robust principles
What is at stake here is not just the fate of a deputy chief minister but also the fate of a political democracy, and faith of the common public in the justice delivery system.
(Harshit Anand is an advocate practising in Delhi. He tweets at @7h_anand and can be reached at 7h.anand@gmail.com. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses, nor is responsible for them.)
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