SC strikes a heart-warming blow for personal liberty By V Sudhish Pai

Whatever Arnab Goswami’s style of journalism, and it may be difficult to support it, freedom of expression is too cherished a value. As the saying goes, “I may not agree with what you have to say, but I will defend to death your right to say it.” We can also recall Thomas More’s celebrated answer to his daughter and son-in-law who wanted a man they regarded as evil to be arrested: “Yes, I’d give the Devil the benefit of law, for my own safety’s sake.” The right to life and personal liberty is the highest in the constitutional scale of values.

And real freedom is when there is freedom for the thought we hate. Bizarre events that had a chilling effect on personal freedoms unfolded and put the rule of law to severe stress and test. The arrest was illegal: made for an alleged offence the investigation into which was closed over two years ago, the closure accepted by the court but now sought to be reopened at the instance of the state government, and which is really no offence.

Nothing can be more far-fetched and outrageous than the alleged offence. It was an abuse of power that invalidates its exercise. It is perhaps not a case for just bail, but one for declaring the arrest illegal and quashing it. The manner of the arrest was equally disturbing. The delay in ensuring his liberty was inexplicable. It was then left to the Supreme Court to strike a heart-warming blow for liberty.

More than a quarter of a century ago, the Supreme Court in Jogindra Kumar v. State of UP profoundly laid down the law: No arrest can be made because it is lawful to do so. No one is liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification for the arrest. In the circumstances, there was no necessity or justification for the arrest.

The investigation could go on, if at all, but the arrest was totally unjustified and smacked of vendetta and was an onslaught on the rule of law. Even his being accused of abetment in this case is puerile.
The aphorism that a man’s home is his castle and that the right to be left alone is said to be the most comprehensive and most valued by civilised people symbolise the concern of the law for upholding the individual’s dignity. Personal liberty is not and cannot be the plaything of the government.

“Faith in America”, said Justice W O Douglas, “is faith in her free institutions or it is nothing”. The philosophy and ethos underlying the Indian Constitution reflects the same. The orders of the trial judge and the High Court have been discouraging and found wanting. It is the apex court that saved the day not for the victim alone, but even more for the system. Such interference with and deprivation of personal liberty of anyone from any quarter is reprehensible and should be remedied at the earliest.

There have been some protests that the listing of the case in the Supreme Court was fast-tracked. Indeed, this is what is expected in every case concerning liberty. What Lord Denning said in the very first Hamlyn Lecture, Freedom under the Law, is telling. “Whenever one of the King’s judges takes his seat, there is one application which by long tradition has priority over all others.

The counsel has but to say, ‘My Lord, I have an application which concerns the liberty of the subject’, and forthwith the judge will put all other matters aside and hear it. …” That there may be cases which have not been taken up and the deserving have not got their due is no reason not to applaud the present decision.

Under rule of law, the law is pre-eminent and is a check against abuse of power while under rule by law, the law can serve as an instrument for the government to suppress in a legalistic fashion. It has been rightly remarked that judges tend the gate between order and anarchy. The problem with everyone in power has been the same. The assaults on freedom keep occurring.

The ultimate guarantee for upholding the rule of law and constitutional values, protecting our liberties and enforcing constitutional limitations is the personality of the judges. The protection and enforcement of fundamental rights is both the power and the duty of the courts; the grant of appropriate remedy is not discretionary but obligatory. Eternal vigilance is the price of liberty, a vigil to be maintained as much by the people.

As has been said, “Nightfall does not come at once, nor does oppression—in both instances, there is a twilight when everything remains seemingly unchanged. It is in such twilight that we must all be aware of change in the air—however slight—lest we become unwitting victims of the darkness.” The light of the Constitution has been rekindled yet again by the Supreme Court around Diwali this year with its order of momentous significance.

A message should have gone down the hierarchy of courts and to those in power that personal liberty is sacrosanct and the courts will intervene and protect it. As former US Chief Justice C E Hughes stated, “The Republic endures and this (Supreme Court) is the symbol of its faith.” The spirit of liberty has to be the eternal flame and the court has to fulfil its role as the ‘sentinel on the qui vive’.

V Sudhish Pai  (vsudhishpai@gmail.com)
Advocate and expert on constitutional law

Source : The New Indian Express