Supreme Court is not happy with high courts and lower courts nature of usually denying bail. Justice BR Gavai, in one week, has been part of three cases that show the state of institutional decay in the judiciary.
In Tusharbhai R Shah v State of Gujarat, the Supreme Court noted the casual disdain with which the police and the jurisdictional magistrate ignored the order of the apex court granting anticipatory bail to the accused.
Later in In Re: Order of Punjab and Haryana High Court dated 17.07.2024 and Ancillary Issues, the Supreme Court took exception to the unwarranted remarks of a single-judge bench of the Punjab and Haryana High Court made against it. The Supreme Court’s stay order was discarded by the single judge who proceeded to make oral observations against the court and put them down on record. A bench of five judges of the Supreme Court has promptly expunged his remarks from the record.
And thirdly, Justice Gavai, with Justice KV Viswanathan, granted bail to Manish Sisodia in the so-called liquor policy scam on the ground that the trial had not even begun in the matter and would not end anytime soon.
What connects these three disparate cases beyond the fact that Justice Gavai was in some way involved with them?
It may be just coincidence but I believe that the first two cases I’ve referred to give us a hint about the Supreme Court’s frustration with trial courts and High Courts casually denying bail.
What the Tusharbhai Shah and In re Punjab and Haryana HC cases reveal are instances of wider breakdown of judicial discipline. Even though Articles 141, 142 and 145 of the Constitution require all courts to not just follow the law laid down by the Supreme Court but also act on the court’s orders, we see instead a casual disregard of such orders by courts lower in the hierarchy. It is not surprising that the lower courts also ignore the Supreme Court’s “bail is the rule and jail the exception” principle.
A major institutional reform introduced in the Constitution was to unify India’s judiciary into a single hierarchy and insulate it from executive interference. This was fortified later when, through judicial interpretation, the High Courts were given exclusive control over the appointment and removal of trial court judges and the Supreme Court was given the final say in the appointment of judges in the High Court and Supreme Court.
The idea was to ensure that executive pressure would not interfere with judicial functioning. Whether the collegium system is the best way to ensure independence is a different matter but it is the law as it stands today. Or it was supposed to be if it hadn’t been stealthily replaced by the “search and selection system” where the final say on the appointment of judges rests with the Union Government.
