First Among Equals

Gautam Khazanchi
30 April 2020 4:29 AM GMT
First Among Equals
As a member of the legal fraternity, I find it my responsibility to seek clarity over the lightening speed in which a matter appears to have been listed.
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In the late evening on 21st April 2020, Arnab Goswami, the Editor-in-chief of Republic TV, in purported exercise of his right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India, made certain comments against former Congress President, Sonia Gandhi. He stated that Mrs. Gandhi is "happy" and will be sending a "report to Italy" in order to gain "praises" as she has gotten "saints" killed in a State which is governed partly by the political party she belongs to.

The tirade by Mr. Goswami led to a multitude of FIR's being filed across various States including Maharastra, Madhya Pradesh, Rajasthan, Telengana, Jharkhand and the freshly made Union Territories of Jammu and Kashmir, alleging, to put it simply – the spreading of fake news.

On 23.04.2020, Goswami chose, as is his right, to approach the Supreme Court directly instead of the Bombay High Court due to the multiplicity of proceedings arising out of the same incident in various states and prayed that all such complaints/FIRs lodged against him be quashed.

The Indian Judicial system, like all other institutions around it has met with an unprecedented challenge due to the pandemic created by Covid-19 and has adapted its system of justice delivery to meet the omnipresent need of society to seek recourse to legal remedies. However while doing so, and in due deference of the need for social distancing, only the most urgent and pressing cases are being heard through video-conferencing. The papers pertaining to each case, that is, the legal brief / petition / application is accepted in paperless formats after following a Standard Operating Procedure established by each Court, which applies to all litigants equally. In the case of the Supreme Court of India, the names of cases found important enough to be heard on a given day are released in the form of a list on the preceding evening by the Supreme Court of India through its official website.

Bear with me as I take you through the following chronology of events that appear to have transpired in the evening of 23rd April 2020:

  • On 23.04.2020, around 4:20-5:30 PM in the evening, the Supreme Court published its main list of matters requiring urgent and imminent hearing for 24.04.2020.
  • On 23.04.2020, around 6:20-6:50 PM in the evening, the Supreme Court published its Supplementary (read additional) list of matters requiring urgent and imminent hearing for 24.04.2020.
  • At no point till this time, did the case titled 'Arnab Ranjan Goswami v. Union of India' reflect in the information available in the public domain vis-à-vis hearing of urgent matters on 24.04.2020 by the Supreme Court.
  • As per the information available on the website of the Supreme Court, the case titled 'Arnab Ranjan Goswami v. Union of India' was filed at 8:07 PM on 23.04.2020.
  • Approximately an hour later, around 9:07 PM, an additional page was published and uploaded subsequently on the Supplementary List of matters for 24.04.2020 by the Additional Registrar of the Supreme Court intimating that the case titled 'Arnab Ranjan Goswami v. Union of India' was listed at 10:30 AM on the following day before the Court.

Let us for a minute ignore the Standard Operating Procedure published by the Supreme Court on 15.04.2020 which states that in all matters involving extreme urgency, where an Application is submitted by 5 PM on a given day, the matter shall be processed for two days after such date and any Application received post 5 PM, for another extra day thereafter. Let us also ignore the circular issued by the Supreme Court on 17.04.2020 making two officials responsible for dealing with queries on matters pertaining to urgent hearing between 10:30 AM till 5 PM on working days.

Let us instead follow the facts as presented to us by the information made available by the Supreme Court and understand that between 7-9 PM on 23.03.2020, Mr. Goswami was able to file a Petition and make an Application for urgent listing and obtain approval of the urgency by the "Competent Authority" and convince the concerned officials of the Registry to jump the queue by not listing it in due course as per the SOP, but the very next morning. Being in practice, I have first hand experience of how difficult and cumbersome this process can be. One needs to constantly follow up with the registry and push for processing of the case incessantly with officers who are generally recalcitrant that one feels one is arguing the case before the Judge himself.

As to whether the statements made by Goswami during his telecast are an abuse of that very constitutional right he claims to have exercised and form the ingredients of several offences under the Indian Penal Code is a matter for a competent court to decide.

At the same time, as a member of the legal fraternity I find it my responsibility to question and seek clarity over the lightening speed in which a matter appears to have been filed, mentioned for urgency, evaluated, allowed and listed within a span of 14 odd hours. Let me reiterate that I have absolutely no qualms about Goswami being able to seek recourse in our judicial system. I do however wonder whether the same judicial system is open to giving an equal chance to those similarly placed or rather, in much worse conditions. The Petition filed by Goswami is in the public domain as well and while I claim to be no legal luminary, or substitute my wisdom for the registry of the Supreme Court, I have not found any "urgency" in the averments made therein to indicate that Goswami was about to be imminently arrested and the only legal recourse available to him was an urgent hearing before the Supreme Court failing which there would be a grave miscarriage of justice.

Are the doors of justice flexible enough to be opened beyond 'office hours' where the need so arises? I would certainly hope so. An excellent example of such a situation was seen recently when the Delhi High Court convened a special sitting at beyond midnight at the residence of a Judge to ensure safe passage for riot victims stuck in an injured condition in a Hospital. The Court was primarily concerned with ensuring the safety of lives of injured persons needing immediate medical attention during the riots that were occurring in the North Eastern district of Delhi. There have been numerous other instances of near instantaneous hearings by the Supreme Court and various High Courts in our country, which have reassured the citizens that where the facts so strongly warrant judicial intervention, time creates no hindrance.

It is also the same Supreme Court where a petition that was filed on 17.04.2020 was not heard till 27.04.2020, a full ten days later. The petition had sought directions to the Central Government to allow migrant workers to return to their native places, after testing them for Covid, and to the concerned authorities to ensure their safe transportation. Print, Broadcast and Social media is bursting with heartbreaking stories that have emerged since the lockdown, showing migrant workers taking on the onerous journey to their homes on foot. Amartya Sen, Raghuram Rajan, Abhijit Banerjee warn us that it may be inevitable that 'a huge number of people will be pushed into dire poverty or even starvation by the combination of the loss of their livelihoods and interruptions in the standard delivery mechanisms' unless steps are not taken to address the issues faced by them.

The Government lost no time in organizing special flights with dedicated medical teams to evacuate expats and other Indian citizens from China and Europe during the lockdown. All of us rightly commended the fast response to provide relief to our citizens at that time. The very same Government has also left a majority of its population stranded on the road having to find their way home with no food or water. Do migrant workers, the most vulnerable and underprivileged strata of our society, who are being forced to stay away from their families and who continue to live in unpredictable and arduous conditions, not deserve access to justice with the same lightening speed as any other citizen? Can we afford to be so unkind and look the other way? Do we not realize the hypocrisy in blaming these migrant workers for wanting to go home when we want our sons, daughters, brothers, sisters to be safe and at home in these distressing times? Do Article 14 (the right to equality) and 21 (the right to life) of the Constitution of India not apply equally to these citizens as they apply to an influential head of a media conglomerate?

The Central Government not only opposed the plea filed on behalf of migrant workers in the Supreme Court on a specious ground such as it would send a 'wrong message' but also sought two weeks to file a reply. Better sense seems to have prevailed finally as it appears that the Government has woken up to their plight issuing guidelines today to permit their movement

Another lawyer, who had filed a case on 17.04.2020, six days before Arnab Goswami, whose matter was in 'process' and finally listed and disposed off on 27.04.2020 has already raised his grievance regarding the 'pick and choose' policy of the registry of the Supreme Court with a letter to the Secretary General of the Court.

As a matter of propriety and transparency one hopes that his legitimate concerns are addressed as one remembers Martin Luther King Jr.'s profound words in a 'Letter from a Birmingham Jail', that 'Injustice anywhere is a threat to justice everywhere.'

Views are personal only

(Author is practicing Lawyer at Delhi)

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