If Court desires respect for law, it must make law respectable by reiterating that nobody is above it

For legal fraternity past few days have been very disturbing at least for common advocates and litigants. It seems that the noble conception of “Equality” which forms the basis of legal system and rule of law in the country is dying its own death in India. Those who have access to the high echelons of power in Delhi can overnight innovate an altogether de novo mean to stall the Police investigation which no ordinary citizens of this country even think of.

The arrest of few so-called Human Rights activists after unearth of some evidence that they were conspiring and feeding Maoists for the assassination of Indian PM, in past few days unleashed a sequence of events which ended up in the Supreme Court. The Hon’ble Apex Court passed an ex-parte interim order of conversion of their transit remand into house arrest. Instead of being taken into immediate police custody and furthering investigation in this highly sensitive case, special treatment has been given to the urban Naxal cadres by an exception to the provisions of Criminal Procedure Code and normal criminal jurisprudence of Police investigation.

Imagine, if the arrests were of simple ordinary citizens or of persons from troubled areas or from minority communities under the same charges what would be the response of the Supreme Court if the Writ Petition of similar nature has been filed. It is now a well-settled principle after several pronouncements of Hon’ble Supreme Court itself that if there is an alternate remedy available, writ jurisdiction should not be invoked, which in this case is a bail application at the disposal of Magistrate’s Court. Here the case was not of illegal police detention but of simple police transit remand in pursuance of the investigation in the light of certain unearthed evidence after ‘Bhima-Koregaon’ Violence.

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The Supreme Court in Sakiri Vasu v. State of U.P., (2008) 2 SCC, in Para 27 itself dealt with this principle of alternative remedy and refrained High Court for entertaining Writ in such cases and withhold the power of Magistrate.

As per Cr.PC, it is a normal routine for Police to investigate a crime and take remand of suspects. It is perhaps unimaginable for any ordinary citizen or even their advocates that the Apex court would come to their rescue in the manner they have in this case, with the ‘dissent is the safety valve of democracy’ argument. The way things furthered in Delhi is in complete derogation to the attributes of The Goddess Iustitia (lady justice) which carries a blindfold, a balance, and a sword as a symbol of justice which is free from differentiation of the status of the parties before it.

Thousands of people in India are arrested every day for several crimes and the provisions of the Criminal Procedure Code deals with them as per the “Law of Arrest”. Interpretation of Supreme Court itself suggests that Arrest forms the part of Investigation. It is an essential component of the Investigation that if facts and circumstances warrant the accused can be taken into custody and rigorously interrogated. Moreover, it is the Judicial Magistrate who decides the extent of Police remand and such custody. If accused wants to be free after Police remand they can apply for a bail before the Magistrate’s Court or Sessions Court.

The Supreme Court in Babubhai v. State of Gujarat, (2010) 12 SCC 254;held in Para 38 that “Unless an extraordinary case of gross abuse of power is made out by those in charge of the investigation, the court should be quite loathe to interfere with the investigation, a field of activity reserved for the police and the executive…”So, the Interim Order of the Court is completely unwarranted, as also there was no any chance of irreparable injury to the Petitioners.

For ordinary citizens, the Hon’ble Apex Court has multiple times decided that higher/appellate Court should not interfere at the very nascent stage of Police investigation and criminal jurisdiction of Lower Courts. Intermeddling with the investigation which is sole dominion of the investigative agencies ought not to be done in a routine and casual manner. Courts are entrusted with the duty of inquiry, not an investigation. Inquiry can only be commenced rationally at the end of the investigation. Freedom of investigative agencies and Magistrate Court is a must for the revelation of truth.

A presumption that the Police and Magistrate’s Court are not doing its duty, without any cogent evidence is bad in law & against judicial morality. Let the authorities do its duty for which it has been entrusted and only if in pursuance of that they commit any illegality then Higher Courts should step in.

What makes the case of urban cadres of Maoist revolutionary different is this presumption by the Apex Court that they are being victimized for their views and hence the Courts should step in with such an exceptional extraordinary route to stall the investigation. The question rather they should ask is what is the fear if they have not committed any illegality? Or, is it Hon’ble Supreme Court has itself lost its faith in the Police and the lower judiciary like of these urban cadres? What was the urgency behind this usurpation of the power of Magistrate Court by the Apex Court of the Country?

The Supreme Court itself in Director, Central Bureau of Investigation v. Niyamavedi, (1995) 3 SCC 601; has held in Para 4 that “…Ordinarily, the Court should refrain from interfering at a premature stage of the investigation as that may derail the investigation and demoralise the investigation. Of late, the tendency to interfere in the investigation is on the increase and courts should be wary of its possible consequences. We say no more.”

The Hon’ble Apex Court has recently in Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104; relying on Swapan Kumar Guha ((1982) 1 SCC 561)case held in Para 31 that “…once the court finds that the FIR does disclose prima facie commission of any cognizable offence, it should stay its hand and allow the investigating machinery to step in to initiate the probe to unearth the crime in accordance with the procedure prescribed in the Code.”

Para 397 of Kartar Singh v. State of Punjab, (1994) 3 SCC 569; judgment observed that it is a legitimate right of the police to arrest a suspect on receiving some credible information or material. The interrogation and investigation should be in true sense purposeful to make the investigation effective.

Now what the Hon’ble Supreme Court seems to be doing in this case, is nothing but subverting the entire legal procedure for a group of influential people using its extraordinary power who perhaps can afford a battery of influential lawyers. What is the message of Apex Court to the Lower Judiciary and people of this country? Is it not differential treatment, privileged procedure and a separate set of rules?

If we take judiciary as an extended organ of State within Article 12 of the Constitution, this decision of the Court itself is Ultra-Vires the Constitution as being violative of Article 14 creating an unreasonable classification between two different groups of people, liberal intellectuals and ordinary citizens and privileging one over the other in the Judicial process.

How many people in this country get this privilege of arguing directly before the Apex Court. One must ask if the Hon’ble Court will open its doors for a common man at 2 AM as it did for Yakub Menon or whether the court will protect the “civil liberties” of thousands of undertrials still locked up in jails as it protected in this case. One must ask whether the court will strike off the entire legal provision of arrests from the Criminal Procedure Code itself to bring the parity among all accused of criminal offences and if not, then what is so sacrosanct about Sudha Bhardhwaj or Varvara Rao that they cannot be even interrogated in Police custody. Whether the Hon’ble Court has considered the fact that this delay of not taking them in custody will directly help them to manipulate with the evidence and will dent the entire investigation?

Nobody knows where this liberal romanticism will take us to, but we should keep this in mind that the history of our country is an eye-witness that we have lost not one but two Prime Ministers who have been brutally assassinated. This is an issue concerning the security of our Prime Minister; he is not an individual but an institution.

People in this country usually avoid commenting upon the wisdom of My Lords, but this differential treatment and especially to those who are accused of plotting against the integrity of the country is unpalatable. It seems that protection of freedom to speech is at the radical extreme for those who want to shekel the system of democracy itself. Times will come and go, regimes will change, eras will pass but the credibility of the institution of the judiciary must be sustained, it is the oxygen of a functional democracy amidst the suffocating pressures of suppression.

If the Court desires the respect for law, it must first make the law respectable with an eternal mantra that nobody is above the law; otherwise, an important pillar of our democratic Constitutional setup fears a serious crisis of credibility if it continues with this differential treatment compromising the sanctity of the Institution.

(This article has been written by Ayush Anand, a practising advocate at Supreme Court and Shubham Tiwari, a law student at NALSAR, Hyderabad)


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