M. Sridhar Acharyulu

When the law becomes a weapon of oppression rather than an equalising force, democracy is in danger. Article 32 deals with the ‘Right to Constitutional Remedies’, and affirms the right of an individual to move the Supreme Court (SC) by appropriate proceedings for the enforcement of the rights conferred in Part III of the constitution.

It states that the SC “shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part”. The right guaranteed by this Article “shall not be suspended except as otherwise provided for by this Constitution”.

Dr B.R. Ambedkar wanted a specific guarantee of fundamental rights expressly incorporated in the constitution so that it could be easily enforced. He drafted Article 25, which later became the current Article 32. Ambedkar said:

 “If I was asked to name any particular article in this Constitution as the most important — an article without which this Constitution would be a nullity — I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it.”

We see the importance of this as personal liberty is routinely violated by the police and governments, without any regard for constitutional guarantee. Article 32 of the constitution enables access to the apex court as a matter of right to every person, not just to a citizen.

For all practical purposes, the high courts are accessible only to a few. The common man gets a hearing only when someone takes up pro bono causes of public interest. By the same token, the SC too is quite inaccessible to the large majority of citizens, especially those outside the national capital region, and except, it would appear, to a privileged few – the television host Arnab Goswami, editor-in-chief of Republic TV, being the latest name in the news.

Precedent and practice

In L Chandra Kumar vs Union of India and Others (1997, 3 SCC 261, at SCC p. 301, Para 78), a bench of seven judges had unequivocally declared that Article 32 was an integral and essential feature of the constitution. This was reiterated by the Supreme Court in S P Sampath Kumar vs Union of India (1987, AIR 386, 1987 SCR (1) 435). Now the chief justice of India says that the Supreme Court wants to discourage petitions under Article 32 and has asked the high courts to exercise their power to protect the rights of individuals. Why then, did it act differently in the case of Arnab Goswami?

Siddique Kappan, a journalist, and three others were arrested while on their way to Hathras in UP,  to report an incident of alleged gang rape and murder. The UP police have alleged that Kappan and two members of the Campus Front of India (CFI) were part of a ‘conspiracy’ to inflame religious sentiments over the Hathras rape, and booked them on various charges, including sedition and under the UAPA.  The Kerala Union of Working Journalists is providing moral and legal support to the journalist and has invoked Article 32 through a writ petition. The SC, however, has said that the matter should be transferred to the high court in UP. A similar case invoking Article 32 involves Sameet Thakkar, a Nagpur resident, who had challenged the multiple FIRs against him for alleged derogatory tweets against Maharashtra chief minister Uddhav Thackeray and his ministers. The SC had then observed that “even high courts can uphold fundamental rights”.

Flip-flop by the Supreme Court

Goswami’s case under Article 32 is obviously thus the rarest of the rare for the SC to have entertained it. On November 11, he was granted interim bail by the SC. Though it had asked every high court to exercise its jurisdiction “to protect liberty… the ultimate reason for our existence as constitutional courts”, the SC held that the Bombay high court had erred in rejecting Goswami’s bail application.

Some other important cases have also been transferred by the SC on its own to its court. Recently, the case involving land use for the national capital’s Central Vista project was transferred by the SC to itself from the Delhi high court, though the petitioners did not ask for it. Similarly, in 2018, the SC had transferred the case seeking a probe into the death of judge B.H. Loya from the Bombay high court to itself.  When such transfers are made, the petitioners lose a stage of appeal that would otherwise have been available had the high courts heard and decided the case. Such transfers are in direct contradiction to the SC’s own assertion that the high court has the power to protect an individual’s rights.

On November 6, senior advocate Mahesh Jethmalani argued that his client Thakker had been arrested despite the fact that all charges against him in the FIR were bailable offences. The CJI refused to hear Thakkar’s case even as the counsel for the Maharashtra government said the state would not object to granting of bail as the investigation was complete in the case. “If your lordships are not shocked by this, nothing will shock you,” Jethmalani argued.  “We see such matters every day. We are immune to such shocks. Nothing will shock us now,” the CJI responded. Perhaps. But it is we the people who should be shocked at this volte face.

All these examples illustrate that the SC has conveniently changed its own position and has not allowed the high courts to act according to the constitutional mandate. Not to put too fine a point on it, but Goswami’s case seems to have been one of personal liberty being violated where the SC felt it needed to intervene, but it felt no such compunction in the case of Varavara Rao and countless others.

Questions but no answers

Can individuals be arrested on suspicion in an old case, in which the allegations are also not clear and the FIR had no mention of their names? Why were their bail petitions repeatedly rejected?  This has happened in the Bhima Koregaon case, to date no one knows what the evidence is that necessitated their immediate arrest and why they have been in jail without bail for two years.

Krishnadas Rajagopal, the law reporter for The Hindu, reported that the Supreme Court on October 29, 2020, did not order Varavara Rao’s immediate release from jail in spite of ill-health, even while it voiced its genuine concern over a month-long delay in the Bombay high court to hear urgent pleas on his behalf.

Justice U.U. Lalit heading a three-judge bench said, “The obstacle bothering us is that the matter is not being heard”. It asked the chief justice of the Bombay high court to list the case for hearing at the earliest.  Why could it not have transferred the case to itself as it did for Goswami? It is quite clear that the personal liberty of a right-wing journalist mattered more than that of an ailing 81-year-old poet and activist who has had false cases slapped on him throughout his life. What then is the credibility of the SC in the eyes of ordinary people?

The case against Varavara Rao

The editor of the monthly literary magazine Srijana, Varavara Rao was accused of conspiracies against the Andhra Pradesh government. He spent years in trial and pre-trial custody but in no case could any of the allegations against him be proved.  It would appear that he has been incarcerated for his political ideology, not for any proven criminal act. Varavara Rao wrote Sahacharulu (1990) in the form of a prison diary. This was later published in English as Captive Imagination (2010). He also translated Ngugi wa Thiong’o’s prison diary Detained and his novel, Devil on the Cross, into Telugu.

An FIR was filed by the Pune police, alleging that on the eve of the 200th anniversary of Koregaon Bhima, the Elgar Parishad that was organised and the speeches of leftist activists and leaders of underground Naxalite groups on December 31, 2017, were partially responsible for inciting the violence that occurred the next day, January 1, 2018. In August 2018, Varavara Rao, whose name is not mentioned in FIR, was arrested for suspected involvement in Koregaon Bhima incidents. Civil rights activists Rona Wilson, Arun Ferreira, Sudha Bharadwaj, Gautam Navlakha and Anand Teltumbde were also arrested in this case.

Varavara Rao filed a petition before the Telangana and Andhra Pradesh high courts, seeking to quash the transit remand warrant issued by the chief metropolitan magistrate, Hyderabad, on August 28. It was contended that the warrant was illegal and did not follow proper legal procedures. Justice B. Siva Sankara Rao admitted the petition on November 6 and suspended the warrant till November 17, 2018. Journalist N. Venugopal, brother in law of Varavara Rao, said that the judge suddenly changed his mind and dismissed the petition without hearing any arguments. The judge also found Rao medically fit enough to be remanded to the Pune jail.

Rao’s health deteriorated during detention in Taloja jail and he was admitted to J.J. Hospital in Mumbai, where he tested positive for COVID-19. A special court ordered a report on his health but bail was not granted. In June 2020, bail was sought following a government recommendation that elderly inmates and those with co-morbidities should be released from jail in light of the COVID-19 pandemic, but this was denied again.  The bail application was supported by fourteen members of parliament, who wrote a letter to the chief minister. It was also supported by two former central information commissioners of India, who raised doubts about the alleged conspiracy case, and called on the NIA to share information with the Mumbai police regarding the case.

Some are more equal than others

During the hearing of Varavara Rao’s bail application, the SC questioned the solicitor general Tushar Mehta who intervened to submit that every prisoner’s health was a concern for the state and such an order in Rao’s case may lead to other prisoners also seeking the same relief on medical grounds. Justice Ravindra Bhat, on the bench, reacted to Mehta, “That should not deter us… If the health condition of every prisoner requires that [sending him or her to the hospital for treatment], then every prisoner should be sent. Health is health… who would want a death in jail?”

The petitioner’s wife said her husband had become very weak and needed critical medical care for neurological issues along with the after-effects of COVID-19. With the apex court’s advice, the Bombay high court took up the case on November 12. Indira Jaising contended that the state had not submitted a complete medical report, in contravention of the high court’s directions. “The report, which is submitted to you now, is an eyewash. I am earnestly requesting he be moved to Nanavati hospital so that a proper medical report can be submitted to you. We have been saying he is suffering from dementia, where is the report on that?” Jaising argued. But the judges allowed a medical examination only through video conferencing and deferred the hearings.

As of Wednesday, November 18, 2020, the Bombay high court has ordered that Varavara Rao be shifted to Nanavati hospital for fifteen days.

Will this be, as in countless other cases, a case of too little too late, as justice delayed is justice denied. While a high-profile right-wing journalist has been given the benefit of Article 32, Varavara Rao, now 81 and suffering on multiple medical counts, has been in jail since November 2018. All his bail petitions have been denied.

Surely this is not what Dr Ambedkar and the framers of our constitution had envisaged would be the fate of the common man in relation to Article 32, which affirms and promises the right for all, not for a favoured few.

M. Sridhar Acharyulu is a former central information commissioner and dean, School of Law, Bennett University.

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