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Varavara Rao's personal liberty: Will Justice Chadrachud's order set a precedent?

By Vidya Bhushan Rawat*
The Bombay High Court has rejected the bail of poet and author Varavara Rao, who is incarcerating in Mumbai’s Taloja Central Jail for over two years in the Bhima Koregaon 'conspiracy' case, in which a chargesheet has not yet been filed. Rao is 80 plus and cannot walk without help. He is suffering from various ailments. The court has “directed” the government to get him treated. It seems the government is willing to spend money on his treatment but is not ready to give him bail.
The Bombay High Court order came a day after Supreme Court judge, Justice Chandrachud, spoke powerfully about 'personal liberty', asking High Courts to ensure that bail is given to people. However, it seems, those who can’t hire powerful lawyers or those who don’t have the backing of the state and media would continue to suffer.
Those who saw Arnab Goswami coming out of jail can understand how much 'respect' he has for institutions. He 'threatened' and 'challenged' Maharashtra chief minister Uddhav Thackeray and Mumbai Police Commissioner Paramveer Singh. While the Supreme Court said that he will cooperate in investigation into charges of abetment to suicide, it is for anyone to assume that Arnab will now continue with his diatribes, unless a court passes clear injunctions.
Varavara Rao and his family have no news channel running for them. Unlike Arnab, he is not crying and begging that his life is under threat. Even if he and other activists behind bars are released on bail, they can’t influence anyone, unlike Arnab, who can use everything, right from his media to political connections, to threaten opponents.
Many people were upset with the Supreme Court becoming conscious of 'personal liberty' of Arnab, who never respected the same for anyone else. Hence, they questioned the verdict. While courts are known to have ruled that they are open to fair criticism, India’s attorney-general has now approved contempt proceedings against comedian Kunal Kamra.
One may not be much interested in Kamra’s comedies, which most of the time are foul-mouthed (quite like Arnab’s), it is surprising that his tweets were called as 'contempt of court'. Ironically, The attorney-General did not find any contempt of the court in Andhra Pradesh chief minister Jagan Reddy's explosive letter against one of the sitting judges of the Supreme Court..
While one awaits the detailed judgment of Justice Chandrachud, where, he said, he had given detailed reasons of granting bail to Arnab, the wait for justice for human rights defenders, political dissenters and social activists will continue to be long. One does not know when will the dark tunnel see the light of the day. Till then, one would have to believe in the system, even if it has become fragile and suffocating.
Justice Chandrachud
Be that as it may, the fact is, Justice Chandrachud’s observation on 'personal liberty', insisting that if states go against it as they should know there is a Supreme Court ready to “protect” it, comes from one of the top thinking judges of our time. He is considered very knowledgeable, one who has disagreed many a time with major judgments. 
Yet, the fact is, the special Supreme Court sitting was just a plan to give Arnab bail. This happened despite the fact that Arnab never followed any procedures, even bypassed them. He showed no faith in lower courts. He was indecent during hearings. His bail application was pending in a higher court, yet he decided to approach the High Court.
So many activists have been suffering enormously in difficult circumstances in various jails, but there is no outrage on personal liberty
But when the High Court asked him to return to the lower court for regular bail, as is the procedure, his lawyers felt, enough was enough. They should now get intervention from the Supreme Court. Hearing for his bail was urgently listed, leading senior advocate Dushyant Dave raising questions about Supreme Court registry picking up Arnab's case so fast when thousands of such cases are pending.
In fact, political leaders and activists languishing in jail after the abrogation of Article 370 is rarely heard on time. Habeas corpus petition of former chief minister Farooq Abdullah was dismissed after the government said he had been 'released', even when he was not. Similar things happened to Prof Saifuddin Soz. The court accepted the 'government' version as gospel truth.
For the last several years, so many activists have been suffering enormously in difficult circumstances in various jails, but there is no outrage on personal liberty. Like Varavara Rao, Stan Swamy is 80 plus and is suffering from various age-related ailments. Yet there is no outrage. Anand Teltumbde, Gautam Navlakha and others have been in jail for their writings. Both of them are in their sixties.
Indeed, it is good that Justice Chandrachud said that he wanted to give an order which would set a precedent. He admonished High Courts for not being active enough on the issue of personal liberty, pointing out, they have been very lax in giving bail. But it is also a fact that some of the High Courts over the last six years have delivered better judgments in terms of people's rights, which is not the case with the apex court.
A case in point is what happened to Dr Kafeel Khan, who was arrested under the National Security Act (NSA) for no fault of his and was released by the High Court. The Uttar Pradesh government shamelessly slapped other cases on him and rearrested him. It was only after the Allahabad High Court intervened that he got bail.
Meanwhile, there is reason to wonder if courts will undo the systematic wrong under which those who can't afford a Harish Salve or a Kapil Sibal are able to get justice. It is possible to appoint a judicial commission under retired judges of Supreme Court to come up with clear guidelines related to political prisoners, human rights defenders and activists working for people's rights. After all, they are punished for being the voice of the people.
Talking of 'personal liberty' in isolation, in relation to just one case, would be hypocrisy. It is important that the whole issue is dealt in a decisive way by the Supreme Court, which should give categorical guidelines to the state not to arrest people for a mere tweet or a Facebook post. During the arguments, Justice Chandrachud said if you don’t like Republic TV, don’t watch it. While these are just observations, things are not so simple.
---
*Human rights defender

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