Pavan K Varma | Will apex court protect liberty for all citizens?

The Supreme Court of India upheld the principle of personal liberty by granting interim bail to Republic TV’s chief Arnab Goswami in a 2018 case where he is accused of abetment of suicide. This is a good thing. There are some who do not like Goswami’s views, or the abusive felicity with which he name-calls and verbally humiliates his ideological “opponents” or demeans those whom he does not like. However, anyone’s personal likes and dislikes are not material to the protection of his or her constitutional rights. If his personal liberty has been unfairly violated, and he deserves to get bail, he should not be arbitrarily kept in prison by the law enforcement machinery of a state government with which he is at loggerheads.

It was heartening for citizens to hear the clarion call of Justice D.Y. Chandrachud: “If we as a constitutional court do not lay down the law and protect liberty, then who will?” The message was clear. The highest court in the land will intervene to protect personal liberty at any cost, list a case of this nature with lightning speed, overrule the standard judicial procedures like first pursuing a bail petition before the designated lower court, and hear the petition even if means working on the weekend. This is also a good thing.    

However, such heartening news may not have bought much hope to Father Stan Swamy, who is languishing in Taloja jail in Navi Mumbai.  The 83-year-old tribal rights activist has been incarcerated since January 2018 for his alleged Maoist links in the Elgar Parishad case. On November 6 this year, Swamy moved a petition before the National Investigation Agency special court in which he asked for a straw or a sipper cup in jail. “I cannot hold a glass as my hands are unsteady due to Parkinson’s (disease)”, his petition said. He was asking not for big things like personal liberty and freedom. His only request was for a sipper cup or a paper straw so that he could drink water without spilling.  A straw or a sipper are not dangerous items, nor are they luxury items which prisoners should not have. But that request does symbolise some things as important as personal liberty, which the Supreme Court so vigilantly defended. It symbolises a human being’s legitimate craving for dignity;  of his supplication for compassion; of his expectation of humane treatment; of his hope in a caring system for those in deep medical distress. The special court judge who heard this desperate petition simply asked the NIA to file its reply on the matter on November 26. 

For 20 days Father Stan Swamy will continue to wait with his trembling hands for a straw or a sipper to be provided to him. The NIA will get twenty days to consider whether such a request should be conceded to.  And there is no guarantee that when it does file its reply on November 26, it would accede to the request. The legal position in the matter may require further deliberation. The rules need to be checked out for “dangerous” prisoners. If these don’t provide for a straw to be given to prisoners, how can an exception be made? After all a sipper, that would enable an 83-year-old prisoner suffering from advanced Parkinson’s disease to take a sip of water, could sabotage the interests of the state. 

Perhaps the honourable Supreme Court could take suo motu cognisance of such matters as well. Travesty of justice has many forms. In some cases, the rule book is thrown at those deprived of personal liberty, who languish in prison for months without bail. In others, matters are fast tracked at incredible speed, and the judiciary makes public its unwavering commitment to protect personal liberty. Perhaps, the highest court of the land will also then take steps to ensure that the personal liberty of people like the octogenarian Varavara Rao, who has been repeatedly denied bail, and not given permission to be admitted to hospital. The 80-year-old poet, teacher and activist, who has been in jail without trial since 2018, again for alleged Maoist links in the Elgar Parishad case, “was found lying on a soiled bed soaked in urine with no one to attend to him”. His health is extremely precarious; he has suffered deliriums in jail, where he also contracted the Covid-19 virus. Perhaps the Supreme Court may also ask its judicial subordinates why bail in the case of a pregnant Safoora Zargar, arrested for participating in the protests against the Citizenship Amendment Act, took as much as 70 days to be processed.

The nation looks upon the Supreme Court, and the judiciary in general, as an agency of the last resort to get justice. When the Supreme Court declares that it will intervene proactively to ensure personal liberty, it raises, in the thousands of prisoners who are for untenable and inhumane reasons being denied personal liberty, the possibility of hope.  Surely, the Government of India is not so vulnerable that it treats people above the age of 80 who are nearly disabled, as “enemies” who can destabilise the State. The administering of justice should never be selective, or so lacking in humanity that it revolts the human conscience. When Father Stan Swamy is given the freedom to drink water with a semblance of dignity, we will believe that the Supreme Court’s concern for Arnab Goswami has a larger meaning and a message for the conduct of the judiciary as a whole.