For India’s higher judiciary, two elements of court proceedings have come to be regarded as sacrosanct. As courts of record, the High Courts and the Supreme Court pay close attention to precedent: rules established in previous legal cases play a strong role when a later case with similar circumstances is decided.
Secondly, these courts are governed by hierarchy in the appeal process. When the Supreme Court passes an order, the High Courts are expected to adhere to it in the letter and spirit. Deviations are seen as acts of judicial indiscipline.
However, though these elements are considered indispensable for the judicial system, should the courts lose sight of the larger picture when enforcing them? Especially in cases where the state is hell-bent on obliterating the fundamental rights of citizens for political purposes?
On Tuesday, the Supreme Court struck down a Delhi High Court order passed last week seeking files of the proceedings that led to human rights activist Gautam Navlakha being shifted from detention in Delhi to a jail in Mumbai. Navlakha and ten others have been accused of conspiring to instigate violence at Bhima Koregan village near Pune on January 1, 2018, after an event to mark the 200th anniversary of a battle there.
The Bharatiya Janata Party-controlled Central government seems so determined to keep these activists behind bars, it transferred the case to the National Investigation Agency in January after chatter emerged that the new Maharashtra government wanted to examine the circumstances that had led to the arrests.
Since August 2018, when the Pune Police tried to arrest him in New Delhi, Navlakha had fought a pitched legal battle to stay out of jail. He has moved several petitions and appeals in the Delhi High Court, the Bombay High Court and the Supreme Court.
On March 16, the Supreme Court denied interim bail to Navlakha, because the provisions of the Unlawful Activities Prevention Act had been invoked in the case. Navlakha was asked to surrender. He did so in Delhi in April because the national lockdown imposed to contain the spread of the coronavirus made it impossible for him to travel to Mumbai to surrender.
When Navlakha moved the Delhi High Court again for bail on medical grounds citing the pandemic as the reason, the NIA sprung to action, rushing to a court in Mumbai to get arrest warrants issued.
As legal experts have pointed out, this was a mala fide move with only one purpose: the NIA wanted to remove Navlakha from the jurisdiction of the Delhi High Court before his bail application could be heard. The High Court saw through this game, remarking on May 28 that the NIA had acted with haste. It called for the records of the proceedings that led to the warrants being issued in Mumbai.
But the NIA moved the Supreme Court against this order. On Monday, the Supreme Court said that the Delhi High Court should not have taken up the petition. The Supreme Court said it had specifically noted in a previous order that Navlakha would have to move a court in Mumbai for remedy. It then struck down the observations the Delhi High Court made against the NIA.
In its eagerness to enforce judicial discipline, the Supreme Court has ignored the gross violation of fundamental rights in the Navlakha case. The Supreme Court did not ask why the NIA had chosen to shift the activist to Mumbai after having agreed to file a status report on his medical condition before the Delhi High Court. In fact, Navlakha’s lawyers argued that the NIA did not tell the Mumbai court about his bail application pending in Delhi High Court.
While the Delhi High Court may have indeed erred, the Supreme Court’s silence on the NIA’s vindictive handling of the case will only embolden the agency to subvert other legal processes in the future.