This story was first published on 13 November 2020 and is being republished from The Quint's archives in light of Bombay High Court granting default bail to activist and lawyer Sudha Bharadwaj.)
“Why do Arnab Goswami’s civil liberties get protected in a swift and robust way and why does he get a get-out-of-jail free card, when he [on many nights], damages the civil liberties of others, and somebody like Sudha Bharadwaj, who stands up consistently for the civil liberties of others, not get the same kind of swift due process and protection of civil liberties and limiting of state excesses against her?”
Leading human rights and constitutional lawyer Karuna Nundy applauded the Supreme Court for acting out its self-professed role as ‘sentinel on the qui vive’ and protecting personal liberty when ordering Arnab Goswami’s release on interim bail – but had some tough questions about the consistency of the court’s approach.
She noted that even though the Republic editor-in-chief had not only damaged people’s reputations by calling them terrorists and anti-nationals, and actually influenced the taking of state action against them – from Umar Khalid to the Bhima Koregaon accused – it was still a good thing that his case was heard on a priority basis by the apex court.
“However, what this must mean in a Supreme Court that must go by precedent, it must exercise its jurisdiction [in such a way] consistently,” she says. In a time when there is so much polarisation in politics and of the polity, when the state threatens the liberty of so many, consistency is key when it comes to this kind of approach by the court.
“I think it’s important to remember that good precedent is something that is cited regardless of what your facts are and who you are. One is just saying that the discretion must be exercised as rigorously in every case that goes before the court, not just in cases like Goswami’s.”Karuna Nundy
One of the best examples of why there are concerns about the consistency of the Supreme Court’s application of these lofty principles about civil liberties is the case of Bhima Koregaon accused Sudha Bharadwaj – someone who Goswami had vilified on his channel, and ironically, along with other co-accused in that case, is lodged in Taloja Jail where Goswami was being held.
As Nundy points out, on 24 September, the Supreme Court refused to entertain plea for, you guessed it, interim bail, for Bharadwaj – a lawyer and activist who gave up her US citizenship to work in India to help some of the most disadvantaged communities in the country.
“Nothing was recovered from her, no incriminating material was found. Her health condition was bad, she suffers from diabetes and other co-morbidities for COVID. She was in jail for two years already, no charges had been framed. A number of tests were required and she just wanted interim bail and she said that she would be diagnosed and thereafter surrender herself.”Karuna Nundy
When her request for interim bail came up, a Supreme Court bench headed by Justice UU Lalit noted that she already had a bail plea pending in the Bombay High Court, and so told her to withdraw her interim bail request or they would dismiss it.
Arnab Goswami had also had a bail plea pending in the Alibaug sessions court when he approached the Supreme Court, but it took a vastly different approach in his case, looking into the case against him and setting him free.
Nundy says that one can appreciate that Bharadwaj’s case is one being investigated by the NIA and is under the draconian UAPA anti-terror law, while Goswami’s was an abetment of suicide case under the IPC. However, she says:
“I don’t see how the Supreme Court in its role as ‘sentinel on the qui vive’ can ignore the fact that in case after case after case, this regime is using these terror laws in order to bypass the constitutional safeguards, the civil liberties enshrined in the Code of Criminal Procedure.”
She concludes therefore by asserting that if the Supreme Court is serious about protecting the personal liberty of all citizens – and not just those with favourable access and expensive lawyers like Goswami – then it will need to look into the cases like Sudha Bharadwaj’s as well, where there is no evidence recovered from her possession, and examine the documents and apply their mind in those cases too, in the same way it did for Goswami.