Symmetrical Asymmetry: The Arnab Goswami bail order

As this article is being authored, a citizen of India has been enlarged on bail by the Supreme Court, while his legal team managed to ensure that his applications travelled the distance from a sessions court in Alibaug, Maharashtra, to Flora Fountain in Bombay, to Tilak Marg in Delhi in less than seven days.

This is no mean feat. More so because the gentleman enlarged on bail also took up some hours of judicial time, and also had the ears of learned judges sitting over weekends, often sitting past court hours, and hearing petitions that were listed despite being marked as defective by the Registry.

This is highly unusual. But this is truly the hallmark of a great judicial system, and also the reason why some of us continue to have unwavering faith in courts.

Next-day listings ought to be the norm when the brief so mandates, as ought to be the availability of a patient hearing. In fact, there should be clear guidelines on how such next-day listings take place. Also ought to be the norm are patient hearings divested of procedural niceties of exhausting statutory remedies in courts as per the hierarchical order. One that is shorn of laborious affidavits/counter affidavits and case diaries in sealed covers.

Because really, a citizen is entitled to enforce his fundamental rights, when such a remedy exists. And courts are duty bound to enforce such rights. To their credit, courts in India have often done so, despite the precedent of interference in the rarest of rare. It is for this reason that courts at the bleakest of times continue to be looked at as beacons of constitutional values and champions of liberties.

Where is the asymmetry, one may ask? If courts have been acting this way, then why does the once taken-for-granted faith therein of citizens (often), and practitioners (more often of late) waver? Why have counsel advised clients not to rush to the Supreme Court in other instances of perceived State aggression, and some instances of demonstrable police excess? And respectfully, why has the Supreme Court been asymmetrical in disposing of the pleas of citizens who have knocked at its doors?

Let us not travel too far back in time to notice this symmetry in asymmetrical treatment – the languor in disposing of Habeas Corpus pleas of leaders in Jammu & Kashmir has been written about. Such pleas mercifully didn’t end up wasting judicial time or ink, having been disposed of as infructuous. The symmetrical fairness in adhering to procedure is borne from the fact that petitions challenging the Citizenship Amendment act (CAA) are awaiting completion of pleadings, and streamlining of prayers. Petitions relating to the migrant crises and adverse effects of the lockdown were dismissed on statements, and later on, belatedly reanimated only to be cast away as infructuous.

Similarly, countless petitioners are symmetrically relegated to move a 226 instead of a 32, a 438 instead of a 482, and a revision under 397 and not a 482. If a learned judge of the High Court does release an accused and set at ‘liberty’ an individual who has been granted relief by the High Court in a 226, the Supreme Court has symmetrically castigated this approach, since of course, the validity of remand orders cannot be tested in 226; there is the statutory remedy of bail.

Citizens cannot be blamed for being flummoxed by this asymmetry – does a practitioner who advises a client to file bail in the Sessions Court not know that the Supreme Court can set him at liberty forthwith under Article 32? Does the graduate - freshly minted from a National Law School - wonder why she has joined an Advocate-on-Record who has made her spend her past five working days making rounds of the listing branch, the registry, and the oath commissioner, when there exist other Advocates-on-Record who make possible overnight listings despite defects? And most importantly, which court does the practitioner really advise a client in custody with a great case on facts to approach, more so a client who cannot afford a few double digits in lakh per day?

Perhaps this is why there exist lawyers who revel in this very information asymmetry - financially or otherwise, across the board.

In trial courts, litigants in Delhi often see lawyers standing at the entrance gates discreetly asking about their case. They whisper double or nothing: bail karwa denge – agar judge sahib maan gaye toh paisa humaara, nahin hui toh half refund (I will get you bail - if the judge grants it, pay me in full. If he doesn't, pay me half). A great career option, one may say, since no one really knows whether the present that is handed over for onward transfer is indeed reaching its intended source.

Bail may be granted or refused on its own merit, but the lawyer in the middle revels in this very information asymmetry, standing to add credit entries to his balance sheet irrespective of the outcome. There is also merit in knowing how to ensure service of summons in time, or better still, how not to ensure such service.

In High Courts, large companies are told to file through a particular counsel, since she is on the ‘not before me’ list of a judge. There also are reasons why a petition is a Writ Petition (Criminal), and not a petition under Section 482 of the Code of Criminal Procedure (CrPC). Some judges are relief-oriented, one hears (as if the other distinguished brothers play roulette with their final orders), and despite computer-generated listings at random, the grapevine says things are still possible.

In the Supreme Court, things are more stark. Stark not because there exists greater scrutiny, but because there is the most supreme form of asymmetry. The defect marked on my petition will often not be marked on yours. Petitions often get listed out of turn, move from one bench to another, are taken up more often than petitions filed in the same year. Petitions arising from the same impugned order are dismissed by one bench, and listed and considered by another.

All of the above may well have reasons, but the seasoned clerk chewing paan outside the UCO Bank at the Supreme Court would happily ascribe reasons for each of the above. Such is the symmetry in this information asymmetry that even the President of the Supreme Court Bar has expressed concern. There must of course be reason why clients (company or individual) request a practitioner to file through a specific solicitor firm. As must be the reason for ensuring finalizing senior counsel after getting to know which bench a case is listed before.

This is why the practitioner hears that experience teaches one more than labour that resulted in gold medals in law schools, or more than the time that was spent on spiral bound briefs for court the next day. The forensic sense in determining the right course of action in litigation is often seen more in those with receding hairlines than those with a few strands of grey at the temple. The clerk who is well travelled in the corridors of the registry imparts more practical knowledge than those dusty AIRs back in office. As does the time spent sitting in court to observe the manner of a judge, before whom you are to appear the next day.

Along this journey, the hope remains that the citizen will see some symmetry in courts dealing with her fundamental rights and matters of her liberty in the future, as she has seen the Supreme Court championing such cause yesterday. Of course, as practitioners, we also hope that the procedure for next day listings is drawn up and placed for all to see, as are circumstances as to the availability of a twenty-four hour court-official who can indicate the possibility of urgent listings on the next day, during vacations, and during weekends.

The author is a Delhi-based advocate.