The Supreme Court knows its scope during COVID-A response to Sri Dushyant Dave, Sr Advocate

The Supreme Court knows its scope during COVID-A response to Sri Dushyant Dave, Sr Advocate  

Sr Advocate, renowned jurist, human rights activist, vocal crusader of rights, Sri Dushyant Dave was “speaking on the subject of ‘Role of Judiciary in a pandemic’ organized by the All India Lawyers Union.’ His statements were published in Bar and Bench where he assailed the Supreme Court for abdicating its constitutional obligation during the pandemic. His statement has been reported here-- (https://www.barandbench.com/news/covid-19-pandemic-judges-have-singularly-failed-in-holding-the-government-accountable-since-the-last-8-weeks-dushyant-dave)

His argument has five significant points and sixth point is my comment. 

1. “Nation-wide lockdown was imposed at a mere four hour notice”. 

A notice of one week, 3 days, 1 day--what could have been an alternative. Is he conscious what chaos it would have created on the road, railway station at every place, Bus stand, etc? We have already witnessed the problem in Ghaziabad and Mumbai. We already lost around 300 guest (migrants) workers.  

2. He says- “Constitution framers really wanted that the Judiciary must supervise and control both, the executive's actions and inactions”. Did the Constitution framers really want that the Judiciary must supervise and control both, the executive's actions and inactions--”control” and “supervise”. Which debate of the Constituent Assembly he is referring to? This idea of “control” is inconsistent with the principle of Separation of Power and provision of the constitution, (like article 50. Separation of judiciary from executive.—The State shall take steps to separate the judiciary from the executive in the public services of the State.)
3. His another allegation is --“But the Judges, I am sorry to say, have either never read the Constitution or if they have read the Constitution, they are not willing to follow the Constitution.” And Judiciary appears to be "singularly and systematically compromised." Dave said. 

Has it been rightly reported? If, so. This statement indicates how sweeping generalisation a responsible senior advocate can make. If a similar statement is made by a judge against a lawyer, the Bar will convene a meeting, call for boycott or go for strike. He is enjoying his free speech and while enjoying he is transgressing the moral and legal limits. 

4. He says that failure of judiciary reminds like failure during emergency and the time of the case of ADM Jabalpur. This fashionable argument has been made so many times in the last few years that it has lost its force.  
5. His next argument is-- “Various High Courts in the country that have many outstanding Judges are remaining silent and not passing orders with the apprehension that any order passed may be overturned by the Supreme Court the next day at the request of the government.” The fear of overturning a decision will not deter an “outstanding judge” to pass an order. Every year many decisions are passed by HCs and many of them are overturned. This is a specious argument. 
6. Dushyant Dave is very well aware of the jurisprudence of judicial review and I am a law man of little academic merit before his towering personality. However, sometimes under certain compulsions even best of the brains cannot appreciate time honoured principles of law. This is called Gandhari blindness. Dushyant Dave is advancing a “rights” based argument which is valid in “normal” or “ordinary” times. Everyone acknowledges that the time for the last few months is not normal. We are facing an invisible enemy called as COVID19. The planet and so our country, is facing grave threat to humanity, like never before in this scientific age. This is not normal but abnormal time. This is not ordinary but an extraordinary time. The principle that directs judicial review in these times is not “rights” (R)based review but “rights with responsibilities” (RwR) based review. Greater deference to the government during extraordinary times is an established principle of constitutional jurisprudence. One may see the precedents in the USA or UK during extraordinary times. The US Supreme Court has upheld the decision of the Government most of the times when the country was facing an enemy. Be it World war [Schenck v. United States. 249 US 47(1919), or cold war or war against terrorism [Kerry v. Din, 576 U.S. (2015) Humanitarian Law Project, 561 U. S.(2010)]

Holmes, J. presented his reasoning for a conservative approach in the case of Schenck v. United States. 249 US 47(1919) as under:  

when a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. [Emphasis Added]

This is a war against COVID which is beyond the shadow of doubts. Something that is permissible constitutionally during normal times may not be permissible when the time is difficult. During difficult times it is not wise for the court to look behind the exercise of the government's discretion or to test it by balancing its justification.  The deference applied to during COVID situations is considerably greater than those applied to other cases. Therefore, the Court cannot inquire beyond what is expressly available in the text. Among the possible standards of review, the courts may adopt either a de novo standard or a deferential standard. Deferential standard believes in presumption of constitutionality because it reposes confidence that the lawmakers would not make a law which is contrary to the constitutional principles and policy. De novo standard does not believe in the presumption of correctness. It may go beyond the text to examine the sufficiency and correctness of decision. This is the area where PILs, suo motu actions get wide recognition with heavy and adverse directions against the government. Once the situation will be back to normal (or new normal) the courts will be obliged to examine the correctness of decisions and justified in making fishing inquiry to preserve, protect and promote fundamental rights. Let us have patience. It is not that the judiciary has not committed blunders. There are many. (AN Ray case, ADM Jabalpur, Mathura rape case, PV Narasimha Rao etc). But a low profile judiciary during Epidemic is a correct approach especially when the decisions of the government to deal with COVID19 are largely accepted by political actors at center and State. The judges of the Supreme court and the High courts have very well read the constitution and are conscious of their scope of judicial review during difficult days of pandemic. Dushyant Dave sir, “while the nation is at war, serious, abrasive criticism ... is beyond constitutional protection.” It is better if we go and reread the jurisprudence without prejudices and bias.  

ARNAB GOSWAMI (REPUBLIC TV) CASE : FREE SPEECH AND ABUSE OF LEGAL PROCESS THROUGH FIR

Arnab Ranjan Goswami v. Maharashtra, Writ Petition (Crl) No. 130 of 2020, decided  by a division bench (of the Supreme Court of India) Justice Chandrachud and Justice MR Shah on May 19, 2020--

Justice Krishna Iyer in Prem Shankar v. Delhi Administration, (29 April, 1980) AIR 1980 SC1535 rightly observed that "When they arrested my neighbour I did not protest. When they arrested the men and women in the opposite house I did not protest. And when they finally came for me, there was nobody left to protest." Arnab Goswami case reestablishes selective silence and tacit approval on attack on free press by powerful politicians. Arnab Ranjan Goswami, hosted a TV show, on Republic Bharat  on April 21, 2020 on lynching of Palghar Hindu sadhu. “On 16 April 2020, three persons including two sadhus were brutally killed by a mob, allegedly in the presence of the police and forest guard personnel.” Arnab Goswami asked many questions from the Maharashtra government (run by Shiv Sena, Congress Party, NCP etc). His main focus of debate was Mrs Sonia Gandhi. After the TV show, many FIRs were registered against him in various States.   Arnab Goswami approached the Supreme court for protection from arrest and quashing of FIR. The Court granted protection but refused to quash FIR (on technical grounds of jurisdiction). A brief summary (of 56 page pronouncement) with my comments is as under--

1. Constitutional Principles

Free speech, especially journalistic freedom needs great protection though no freedom is absolute. The Supreme court in Arnab Goswami case observed at para 32:  

“India‟s freedoms will rest safe as long as journalists can speak truth to power without being chilled by a threat of reprisal. The exercise of that fundamental right is not absolute and is answerable to the legal regime enacted with reference to the provisions of Article 19(2). But to allow a journalist to be subjected to multiple complaints and to the pursuit of remedies traversing multiple states and jurisdictions when faced with successive FIRs and complaints bearing the same foundation has a stifling effect on the exercise of that freedom. This will effectively destroy the freedom of the citizen to know of the affairs of governance in the nation and the right of the journalist to ensure an informed society. Our decisions hold that the right of a journalist under Article 19(1)(a) is no higher than the right of the citizen to speak and express. But we must as a society never forget that one cannot exist without the other.” 

2.            Jurisprudential dynamics 

A harmonious construction between rights of accused (here Arnab Goswami) and rights of victim (here supporters, leaders of Congress Party and six States) is required to be made. The policy is that the “Measures adopted must be the least restrictive measure to effectively achieve the legitimate state aim.” para 33. 

3.            Harassment of accused, Arnab Goswami  was apparent, State action unfair-

The Supreme Court observed : 

 “Subjecting an individual to numerous proceedings arising in different jurisdictions on the basis of the same cause of action cannot be accepted as the least restrictive and effective method of achieving the legitimate state aim in prosecuting crime. The manner in which the petitioner has been subjected to numerous FIRs in several States, besides the Union Territories of Jammu and Kashmir on the basis of identical allegations arising out of the same television show would leave no manner of doubt that the intervention of this Court is necessary to protect the rights of the petitioner as a citizen and as a journalist to fair treatment (guaranteed by Article 14) and the liberty to conduct an independent portrayal of views.” para 33. The Supreme Court asserted that these facts  need intervention by the Apex Court, though partially.  

4.            Multiple FIR quashed but One

Except one FIR, all FIRs against Arnab Goswami were quashed because they were on the same cause of action. The Court applied P1 (Principles-above stated), P2 (Policy-least restrictive action) and P3(Precedent-TT Antony case).  “Following the decision of this Court in TT Antony (TT Antony v State of Kerala (2001) 6 SCC 181, division bench ) that successive FIRs/complaints founded on the same cause of action are not maintainable.” para 53.  

5.            Quashing FIR : Respect judicial hierarchy-High Court has original jurisdiction 

The Supreme court refused to quash the main FIR (or one FIR under question). The basis of refusal was technical and not on merit. It seems Justice Chandrachud rejuvenated the doctrine of “originalism.” He relied on hierarchical structure of judiciary and paid deference to the high court jurisdiction. High court is appropriate forum under 482 CrPC 1973. Article 32 can be used by the Supreme Court. Justice Chandrachud presented his idea of “originalism” as under (para 49): 

“But when the High Court has the power under Section 482, there is no reason to by-pass the procedure under the CrPC, we see no exceptional grounds or reasons to entertain this petition under Article 32. There is a clear distinction between the maintainability of a petition and whether it should be entertained.”

The petitioner, Arnab Goswami did not exercise High court jurisdiction despite a stay on other FIRs in different states in a previous interim order.  

This “originalism” and ‘deference for hierarchy’ has its advantages (and disadvantages). It is good to witness that Justice Chandrachud has exercised restraint in not exercising article 32 or 142 when many orders/decisions of the Supreme Court exhibit “jurisdictional hunger”. He was equally conscious that while originalism and hierarchy be maintained, journalistic freedom should not be a casualty of technicalities of hierarchy. Therefore,  he further extended the protection from coercive action like arrest for the next three weeks.  

6.            Chances of unfair investigation and apprehension of harassment of Arnab Goswami unfounded

The demand of Arnab Goswami to transfer cases to CBI from Maharashtra Police was rejected because they were unfounded. He could not establish chances of bias by Maharashtra Police. (The Police is always a soft target). Mere vague allegations on Police, his procedure, questions raised during investigation cannot be a prima facie ground for change of investigating agency. It needs very strong reasons, like violation of law or genuine chances of bias.  

The TV show of April 21, 2020 (https://www.youtube.com/watch?v=C2i4MMpKu9I) on brutal lynching of Palghar Hindu sadhus, which was hosted by Arnab Goswami used provocative words for Congress President, Mrs Sonia Gandhi. She was referred many times by her original name and place. It can irritate a person who follows the leader. It can be annoying to others. It can be defamatory in nature. In classical sense, it can be immoral and inconsistent with high morals of ethics and journalistic values. However, it cannot attract a penal law. It was within constitutional limits of freedom of speech and expression. No penal provision like 153, 153A or 505 etc can be made out. The words and expressions used do not contain elements of the offences imposed. Moreover, the Police and the Judiciary are obliged to follow the “totality” test. This means one or two statements cannot be the basis of criminal proceeding. The whole content has to be considered. (See. Constitution bench pronouncement of Bharati Press case or State of Bihar v. Shailabala Devi on 26 May, 1952).  Also see, Manzar Sayeed Khan v. State of Maharashtra (5 April 2007) full bench case--

“The matter complained of within the ambit of Section 153A must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning.” 

FIR on Arnab Goswami does not reveal any element of offences mentioned. The High court will quash it without much arguments. (This view was written when the FIR was registered. On May 20, 2020 when the Supreme court order came, my view was upheld because the Court directed no coercive action like arrest. Later the High court also hold the same opinion because it was based on legal principles.) 

7. High Court suspended FIR

On June 30, the High court of Bombay has suspended FIR against Arnab Goswami. Pl see here(https://indianexpress.com/article/india/arnab-goswami-palghar-lynching-case-6483265/). The High court held that : 

“58. Thus, on an overall consideration, we are of the prima facie view that FIR No.164 of 2020 on the face of it does not make out commission of any criminal offence by the petitioner.”

64. On an overall reading of the FIR, statement of the informant and transcript of the broadcast, it would be wrong to say that petitioner had made the statements in the broadcast with a view to defame or insult the feelings of any religious group or community. 

66. From the above it is prima facie evident that clauses 1, 2 and 7 of Bhajan Lal (supra) would be attracted in the facts and circumstances of the case.

67. [Referring the Supreme court order]-]We cannot have the spectacle of a Damocles' sword hanging over the head of a journalist while conducting a public debate. India is now a mature democracy. Seventy years into our republic we cannot be seen to be skating on thin ice so much so that mere mention of a place of worship will lead to animosity or hatred amongst religious communities causing upheaval and conflagration on the streets. Subscribing to such a view would stifle all legitimate discussions and debates in the public domain.

69. (3) All further proceedings in FIR No.164 of 2020 before the N. M. Joshi Marg Police Station, Mumbai and FIR No.137 of 2020 before the Pydhonie Police Station, Mumbai shall remain suspended; and (4) Interim order passed on 09.06.2020 to the effect that no coercive steps shall be taken against the petitioner vis-a-vis the above two FIRs shall continue till disposal of this petition.

It is not very clear what is the meaning of suspension of FIR? Is it equivalent to quashing in this case. As the high court has relied to Bhajan Lal case, it seems it is as good as quashing. As the master has other issues of constitutional importance, the court has not conclusively decided. 

8. Concluding Remarks

The judiciary has followed “rights” jurisprudence. Just because a political party or someone does not like the approach of a journalist (here Arnab goswami), or because he is blunt, uncourteous in asking questions, does not mean he deserved to be intimidated by those in power. This was an attack on freedom of speech, expression and media. The congress regime is infamous for it. They did it during the emergency in 1975-77, they will not hesitate to crush the voice of dissent. When they are not in power in central government, they can unleash this sort of abuse of authority. If they will come in power only god knows what they will do. It is also to be noticed that a group of intellectuals, media, academicians who often throw the argument of freedom and liberty even for those who are convicted terrorists and convicted criminals, have not demonstrated the scant regard for the right to freedom of speech and expression of Arnab Goswami. The support and opposition on the issue of freedom of speech and expression ought to be based on (P5)principles of law, provisions of law, precedents of judiciary, policy and professional opinion. If it is selective and based on prejudices as well as  political orientation, it will be a threat to democracy and freedom of speech.