Arnab Goswami case: Are we moving to a new system where discretion is displacing principles of law?

By holding a special sitting for Republic TV anchor Arnab Goswami and granting him bail on November 11, the Supreme Court has once again proved itself to be the most powerful court in the world. Lawyers often joke that our Supreme Court can do everything except for declaring a man a woman and vice versa. As it happens, everything in India is subject to scrutiny because citizens believe they have a stake in how it is run. What else, they ask, does “of the people, by the people, for the people really mean?

Judges may not be elected representatives and therefore are not strictly “by the people”. But then, their salaries come from the taxes paid by honest Indians and hence they are answerable to them. They are under an obligation to honour all the constitutional norms, the most important of which is equality.

For some people, the Supreme Court has defied this provision and once again proved itself to be a court of the privileged. How else could the defective petition be listed at the speed it did and get a hearing on an unusual sitting? These critics note that the status of an arrestee could be an important factor in other forms of government – but not in a democracy.

However, people like me who fervently believe in civil liberties feel it is a pathbreaking step that will augur well for others inside and outside of jails who are crying foul and claiming that they are victims of vendettas by the government for imagined crimes.

It is heartening that the Supreme Court has ignored the advice of the state not to look worldwide in deciding matters in Indian courts and contexts. It has once again relied on Lord Denning’s Freedom under the Law:

   “Whenever one of the King’s judges takes his seat, there is one application which by long tradition has priority over all others. Counsel has but to say, ‘My lord,I have an application that concerns the liberty of the subject’ and forthwith the judge will put all matters aside and hear it. It may be an application for a writ of habeas corpus, or an application, for bail, but, whatever form it takes.it is heard first.”

Having set this trend in motion, one can reasonably expect a spate of similar petitions. It will be interesting to observe how the court will handle them – if at all. If it does not, it would amount to giving false hope, which is the prerogative of politicians, not judges.

Historical background

As for the true implications of the order, apart from a flush of such petitions, we need to get a historical perspective of criminal law in India. When Lord Macaulay was tasked with drafting criminal law for India sometime in early 19th century, he said, “The principle is simply this: uniformity when you can have it; diversity when you must have it; but, in all cases certainty.”

The goal of procedural law as we understand it is certainty at all cost.

Nineteenth-century English lawyer James Stephen characterised India’s legal system prior to codification as being governed by the whims and caprice of innumerable rulers and a mass of village communities. He believed the destruction of indigenous Indian law was legitimate so that the Rule of Law could be established.

With the codification of its laws, modern India was thus given a framework that, though alien, is at least, in theory, in conformity with our democratic goals and the idea of justice.

The early framers of the criminal code felt that in establishing the principle of Rule of Law and execution of certainty, discretion should be kept at its minimal application. Macaulay had noted that judicial discretion was also a problem under English law. However, he believed that this evil was mitigated by a higher standard of morality, the existence of legal traditions grown over the centuries, the presence of popular institutions, such as parliament, the ever-watchful and critical eye of a learned legal community and the use of reported cases.

In the light of this, we should know whether we are developing a new criminal jurisprudence where discretion is displacing the established principles of law. At what stage can questions of fact being malafide or claims that the cases are the result of vendetta and so on be raised and adjudicated, and by which court?

Surely, if courts can do it at the threshold itself without leading evidence, it would mean the shortest way of ending litigation. Quick justice is what everyone wants.

Having said this, my attempt in this article is to understand the legal position as it stands today to assure myself of the little knowledge I have gained in many years of mainly criminal practice. What follows may seem an over-simplification of the procedural law. But that’s what it is, provided we do not mystify it for twisted purposes.

In order to undertake this exercise, I must firstly be absolutely clear on the facts of the case, which I am sourcing from the writ petition filed by Republic TV anchor Arnab Goswami in the Bombay High Court. I will consciously steer clear of the merits of the case as to whether a criminal offence is made out against him because I do not wish to encroach upon the jurisdiction of the trial court.

The facts

So, let us begin from the beginning. It appears a First information Report, No 59, was filed by one Akshata Anway Naik on May 5, 2018, in connection with the alleged abetment to suicide of her husband and her mother in law, against Arnab Goswami and some others on the basis of a suicide note.

Loosely translated, it said that they were committing suicide on account of the non-payment of dues by Arnab Goswani and two others.

After due investigation, the police submitted a closure report in May 2019 in court. It said that no case had been made out against the accused.

Legally speaking, at this stage, the magistrate has the discretion either to accept the report or disagree with it. If he decides to accept the closure report, he has to mandatorily issue notice to the informant and hear her out and then make up his mind whether to proceed – or not.

If he disagrees with it, he can either proceed with the case on the facts available or he can direct further investigation. To keep facts straight, it appears the magistrate accepted the closure report without giving the informant notice and hearing her.

It appears that in the meantime the informant started agitating for the dues, communicating through letters. The daughter of the informant met the Maharashtra home minister in May and the police re-opened the investigation. The police gave information about this to the concerned magistrate on October 15, 2020. After due permission, it got the statements of witnesses recorded in court.

A legal question

The legal question here is whether the police has the power to further investigate a case even after a closure report. There was no such provision in the old Criminal Procedure Code 1898. But when the code was overhauled in 1973, it introduced this provision. The reason for it is contained in 14.3 of 41st Law Commission Report.

It said that the courts had taken a narrow view that the police could not reopen an investigation. But this, it said, “places a hinderance in the way of the investigating agency, which can be very unfair to the prosecution and, for that matter, even to the accused”. It articulated something that others understand practically – that the reason for which closure reports are filed is sometimes collusive or sometimes on account of plain inefficiency.

The magistrate was therefore mandated to hear the informant before accepting the closure report and was also given the discretion to disagree or direct a further investigation. It is truly remarkable how wisely the law makers introduced the rule of checks and balances and equal respect to each player. As we see, it is for ends of fairness that this provision was introduced. Thus, Rule of Law was established.

However, it is also known that the reasons for which cases are further investigated are not always honourable. But then, political will and the power of authority are accepted evils. Exceptions do not make the rule. In such situations, the accused cries foul but the courts can do little in the matter.

Since time immemorial, the courts have held that the police has unfettered powers to investigate and no court can/should interfere at that stage of investigation. Courts have almost always restrained themselves from quashing a prosecution at its threshold, much less an investigation.

The next question is whether the magistrate could have remanded Arnab Goswami to custody despite accepting the closure report at one stage. The procedure enjoins the magistrate to prima facie satisfy itself on the material produced by the police and act accordingly.

In the present case, I assume, because the magistrate remanded Goswami, it must have been satisfied on the materials appearing against him. The adequacy of materials in a criminal prosecution is not open to challenge at most stages.

Thereafter, once the magistrate rejected the prayer for bail, the usual course open to an arrestee is to move for bail in the Sessions Court and the High Court under the provisions of Code of Criminal Procedure and the Supreme Court. This could be done under Article 142 of the Constitution, which grants the power to the Supreme Court to pass any decree to do “complete justice”.

Twin prayers

However, it appears that Goswami moved the Bombay High Court under extraordinary jurisdiction –
Article 226 of the Constitution – with twin prayers:

1. That it issue a writ of habeas corpusdirecting his release holding his continuing detention illegal, since he had been arrested after the case was reopened. (Habeas corpus is “a court order demanding that a public official deliver an imprisoned individual to the court and show a valid reason for that person’s detention”).  
2. That it issue writs of mandamus (a command to an inferior court or an order a person to perform a public or statutory duty)and certiorari (seeking judicial review of a decision of a lower court) quashing the proceedings against him since the case had been reopened on account of political vendetta.  

I have already explained the proposition of law in respect to re-opening a case. There is another important aspect in respect to issuance of a writ of habeas corpus. The established principle is that it can be issued only if the detention is illegal on the day the court is hearing the matter – meaning that if in the meanwhile the detenue has been remanded to custody on a valid judicial remand, no writ can be issued.

In the present case, we see Goswami’s remand to judicial custody by the magistrate was valid. Experienced lawyers know that there are many situations when the arrest/detention is illegal on the date a petition has been filed but by the time the petition is heard, the remand is valid. This frustrates the prayer for habeas corpus to be issued. The sufficiency of the materials on which the case rests was also certainly not open to challenge in a writ petition.

Now, consider the next prayer for quashing the prosecution on grounds that it was malafide and an act of vendetta by the Maharashtra government. Legally there are two types of malafide: one of fact, the other of law. Clearly, the writ petition pleads malafide on facts, which apart from being commonly known as a plea of defence, is rebuttable. Parties would have to lead evidence on it and this could not be determined by a writ court.

As far as the High Court not allowing the prayer for bail in the interim period is concerned, it can be easily understood that allowing such a plea would have meant finally deciding the matter of illegal detention.

Now the question is that if the High Court was correct in applying the accepted principle of law, how and why did the Supreme Court interfere with the order? To understand this, one will have to keep in mind that the Supreme Court has immense powers under the Constitution to do complete justice. In its opinion, it did.

Anjana Prakash is a Senior Advocate and former judge of the Patna High Court.