We Should Engage With The Institutions To Strengthen Democracy, Instead Of Retreating : Vrinda Grover | Full Text Of Interview

In this interview with Manu Sebastian, Managing Editor of LiveLaw, Advocate Vrinda Grover discusses issues related to arbitrary arrests, reluctance of Magistrates to grant bail in politically motivated cases and the importance of preserving personal liberty and free speech.

The full transcript of the interview, slightly edited for length and clarity, is given below. The video of the interview can be watched here.

Manu Sebastian : Hello everyone, today we are joined by Advocate Vrinda Grover, who fought the legal battle for fact-checking journalist Mohammad Zubair, right from the Magistrates court to the Supreme Court and got him bail not just in the existing cases but also in the future cases which could be registered against him based on his tweets.  Welcome.

The Supreme Court has given a very powerful order and the court has granted him bail not just in the existing cases but also in the future cases which are likely based on the same tweets. The court has also made an observation that the power of arrests should be exercised very sparingly. During the hearing, the court made an oral observation that there seems to be a vicious cycle going on against Zubair that as soon as he gets released in one case he is remanded in another case. During the hearing, you had used this this phrase "evergreening of his custody is going on" and the court seems to have accepted that proposition.  So where do you do you see a larger significance for the Zubair's order, not just in this case but in the larger picture as well, because we see this trend happening across states, across the political spectrum where FIRs are involved against journalists and even common citizens for their social media posts criticizing the government. What is the message which the supreme court seems to be conveying?

Vrinda Grover : I think the Supreme Court, both through the Zubair order - and as we know we only have the operative part of the order with us presently, the judgment is yet to be pronounced - and the judgment in the case of Satinder Singh Antil comes to mind is repeatedly saying that personal liberty is to be treated with the gravity that it deserves as has been conceptualized in the Constitution. Simply because the police is abusing its power, simply because there is a targeting of certain inconvenient voices that refuse to be silent, voices that are dissenting, the courts should not shy away from exercising their power of enlarging such persons on bail and scrutinizing the material that the police puts forward. So I think personal liberty has once again been foregrounded and at the same time we have been alerted that there is a a real possibility of the police actually abusing the power that it has in this case.

MS : In this case, you had to fight right from the Magistrates court till the Supreme court and Zubair had the legal support of a good legal team. But there could be a lot of people who may not be in a position to avail legal aid. The Supreme Court has repeatedly said, even in the recent case in the Satinder Kumar Antil case also,  that bail is the rule and jail is the exception. But that seems to be not happening at the ground level. People need to knock the doors of the higher courts for bail and by that time they have to spend several days as under trials in custody. The law is very clear but things seem to be not working at the ground level. So what do you think should be done to fix this?

Grover : You're absolutely right.  We know that there are many many people across this country and it's not only about people who may be speaking out on social media. There could be activists, there could be human rights defenders, there could be people of marginalized communities, who have been arrested on not very good legal grounds, who then suffer incarceration for years before they get bail. The Supreme Court has repeatedly been underlining and underscoring the importance of bail. It was in 1987  that Justice Krishna Iyer said bail is the rule and jail is an exception and this has been reiterated in multiple judgments now by the Supreme Court. The word of the Supreme Court is binding on all courts, all law enforcement agencies.

I think we will have to take cognizance of the fact that there is a politicisation that is taking place of certain kinds of cases and we can't shy away from that reality anymore. A case where the individual arrested is seen to be anti-establishment or is seen to be asserting simply free speech which those in power, whether social or political, may not seem to be very comfortable, in those kind of cases ,there is a wariness, particularly at the Magistracy level, to grant bail and that to my mind is actually very worrying.  It is worrying not only in terms of personal liberty of the individual who then has to go through the entire appellate process and we know that it's not easy to you know from different corners of this country to be able to approach the supreme court given that this you know and and get an early hearing and a release.  It is worrying also because the magistracy must work free of any of these concerns and the cacophony and the turmoil hat is created in the socio-political sphere. The magistracy, which is the first line of defense of our civil liberties, must be able to work without any of this intervening in the manner. But that is not what we are observing.

Even the Supreme Court is saying this. In the Satindar Kumar Antil case, the court is giving directions. In Arnesh Kumar case in 2014, the court said exactly these things. Yet, when you argue matters of procedure, it is very unfortunate that at the Magistracy level an argument based on 41A does not seem to lead to a legal engagement and is seen as just a notice. A paper compliance seems to suffice and the rigorous judicial scrutiny and the asking of the questions is not taking place.  "Why arrest?" - this is the first question that the Magistrate must pose to the investigating officer. I don't have to justify but they have to make out a case saying that they need to arrest me. So the the prosecution has to cross many legal thresholds in order to curtail anybody's liberty and I think we need to link this to what Article 21 says. Article 21 says my personal liberty can be abridged if it is in accordance with procedures established by law. What is procedure established by law? It must be just, reasonable and fair. Is there a reasonable case made out and if it is not it is not,  it is a violation of Article 21. I would go so far as to say that in many cases in this country, it amounts to cruel inhuman and degrading treatment where a person is kept in incarceration which is a violation of the convention against torture.

MS : In a recent interview with Justice Deepak Gupta, he had suggested that there should be a proper training for the Magistrates, that the feeling should be inculcated in them that they are also doing a constitutional function. But it seems that it's not that they are not aware of the principles and the law, it seems that in some particular cases, especially in high profile political cases, they seem to be not exercising that powers or abdicating their functions. So do you think there should be some accountability mechanism against the police as well as the judicial officers who are not properly applying their mind?

Grover : I would make a distinction between a police officer and a judicial officer. I wouldn't call it accountability when it comes to a judicial officer because I think a judicial officer will be exercising discretion. A police officer will have to record very clearly the reasons for arrest, and it should not be something like the accused is not cooperating". What does this phrase mean? I don't think a Public Prosecutor should be permitted to use this phrase while seeking police demand. Please stipulate what that cooperation is? I also enjoy Article 20 right to silence. What does cooperation mean? That you are saying give me your bank details because you published a tweet and I say no? I have a right to privacy. Then that is not non-cooperation, it's an assertion of my fundamental right and that is the scrutiny that is lacking.

The police officers are acting with impunity. There is no accountability today of the police. Within the department it does not take place. External accountability- will the person who has suffered then actually return to court and start fighting another legal battle? Who is going to do this? These have to be self-executing mechanisms within the system. Don't place the burden on the person who's already suffered at the hands of the misuse or abuse of law. In so far as the Magistracy is concerned, I think they act under superintendence of various high courts and it is at that level that very clear guidance needs to be given. When orders of this kind are passed, they have their internal review systems which need to take place.

Another central question to personal liberties is the seizure of electronic devices.  There is a pattern that is growing with electronic evidence. In the US judgment Riley versus State of California the court talks about how this phone actually carries my life and a lot of my private material. But today, if you go in for interrogation, it is standard SOP, leave your phone. Why should I leave my phone? If you want my phone, you will have to say for what purpose, what extract do you want. On this the court has yet to lay down the law and therefore the police is getting away with actually driving a truck through our right to privacy completely.  So i do think these are areas where we need much more conversation within the judiciary. But the the manner in which the judiciary is to act independently has to be is something that I would leave really to the high courts and the Supreme Court.

MS : In the Arnesh Kumar case as well the court has said that if a judge is remanding a person without proper application of mind and without satisfying that the guidelines are complied, there should be a departmental action. Now recently, the Supreme Court has reiterated some guidelines regarding bail and has set a timeline for disposal of bail applications.  If that is not being complied with, don't you think that there should be some mechanism?

Grover : The mechanism has to be developed by the judiciary for ensuring that those who are performing this role are working in strict compliance with the law both the statutory law as well as the law laid down by the supreme court. Magistrate is the the first line of defense for every person and citizen and therefore the kind of attention both in allocation of resources not just in holding them accountable, even in allocation of resources..... when you travel out of Delhi, as I do for certain matters, look at the kind of resource allocation that the Magistrate has. After all, the independence of judiciary must also be felt by the judiciary when they are performing a difficult task and therefore I think the review etc., must take place but it is something that the high court needs to ensure.

MS : Earlier we used to have this trend of sedition cases being invoked against journalists and people who are voicing dissent. Now the Supreme Court has effectively kept the sedition provision Section 124a IPC in abeyance. So, now we see we see the recent trend of these cases of hurt religious sentiments. Section 153A and 295A IPC are randomly invoked and in many cases out of context. Although the law is very clear that there should be a deliberate intention to create disharmony or create religious insult, but at the stage of FIR that is not often followed in all cases and the person has to undergo the entire process of remand and bail application etc and by the time enough damage is done. So what do you think about this recent phenomenon of people taking offense or even manufacturing offence and invoking these cases against people who are voicing dissent.

Grover : I think your phrase "manufacturing offence" is very pertinent here. It's very interesting because we've all been living in this country and it is an old is country. We are now celebrating the 75th year of independence. We've always been a diverse plural complex and a noisy democracy and noise is good in a democracy. And yet suddenly there seems to be a lot of perceived hurt at anything that is said particularly with respect to religion. And this is not an even-handed operation of law. I'm not going to mince my words about this. It's not as though everyone is able to express when they're there they are being targeted. It is an act largely under the guise of a majoritarian rule where certain kinds of groups of people are allowed to be hurt.  No offense is made out, they are feeling a perceived hurt. Some of us don't feel that hurt. That language is not meant to hurt. That language is actually not even causing offense, leave aside crossing the threshold of inciting hatred ill -will enmity etc etc or hurting religious sentiments. There is a deliberate strategy to do this. It's not happening on  its own. In fact, even in the case of Muhammad Zubair and I did peruse social media in order to comprehend what really are the machinations by which these cases are being lodged and mushroomed. There are people who for very very ulterior motives and extraneous reasons are actually encouraging lodging of such cases. So this is not happening on its own. My experience in this country is that it is very difficult to lodge an FIR, and this has nothing do with majority versus minority, across the board, for a lot of vulnerable and marginalized groups, getting an FIR lodged in this country is extremely difficult and one has to  make many visits to the police station or file a petition under 156(3). So, it's quite interesting the police seems to accept the complaint and without even seeing if a cognizable offense made out and what is the nature of the complaint, they are acting. Somebody is generally saying I don't like this I don't like that and there is an IFR that is launched and 14 days police remand applications are being moved. This is not a case of zero application of mind. This is a case of mala fide application of mind by the law enforcement agency. So the manner in which this is working is you know it would be naive to say that you know this is just a few police officers not knowing the law.  This is not an ignorance of the law, this is an abuse of the statutory power that is taking place and here comes the question of accountability.  And we know that not just Zubair has suffered incarceration for 23 days we just heard of adivasis being released after five years. For years the most marginalized groups are incarcerated under anti-terror laws not granted bill so now that they are out after five years. Who is going to compensate them not just for loss of liberty their lives have been destroyed, we don't know how many of them have been further impoverished. Who is answerable. I myself have done a study on this why and there is documented evidence of this. Where is the state restituting them what it has knowingly denied and deprived them and to say that adivasi should go back to the same legal system and seek a remedy, that is not acceptable. The burden is on the State. It's the state that now has to compensate them. The state has to punish the officials who lodge these false cases and these cases are launched knowingly under the guise of conflict etc etc and so who is failing us today is the State. The State is no longer to be seen a silent mute spectator in this entire scenario. The hand of the state can be seen very clearly.

MS : So in cases like this, when the court is properly exercising its powers and granting bail or giving acquittal, it's not just protecting the personal liberty of the accused but it is serving a larger purpose of preserving the democracy and preserving the space for dissent and it has a larger manifest manifestation as well. You would also suggest that there should be a mechanism to review the conduct of police officers when an FIR is quashed by a High Court or a Supreme Court or a person is acquitted, there should be some self-executing mechanism whereby the the act of registration of FIR and the conduct of case  is reviewed so that some accountability can be enforced.

Grover : It should absolutely be reviewed. Their promotions etc need to be brought to a halt if this is the nature of work that they're doing. For long there has been a conversation in this country and nothing comes of it. Let me give you a small illustration from the Hashimpura massacre case in which the Provincial Armed Constabulary of UP had gunned down in custody over 40 muslim men in 1987, a trial in which we got conviction only in 2018 by the victim families pursuing the case. I had actually through an RTI application taken out the internal documents of the Annual Confidential Reports of the accused and what was clear was that the fact that they were being prosecuted for mass murder committed while on duty was not even mentioned in the ACRs and they got regular promotions even as they faced prosecution, they continued to be in service. So that is the state of affairs of internal scrutiny within the police system.

Therefore, we need mechanisms like say in the UK, where they have independent police complaints authority which do not comprise of the police itself reviewing their subordinates work. I think the fundamental shift that I'm trying to argue here Manu is... it goes back to the core principle of chapter three of the Constitution. Our entire criminal legal system and it is partly because it is a colonial statute...we and the police functioning is structured also along colonial lines. It views the citizen with suspicion that needs to be transformed and that is the transformation that chapter 3 signals to us. Chapter 3 places the citizen at the heart and puts curbs and checks all along on the power of the state and guarantees freedoms to citizens. What does the police functioning do? What does the criminal law do? If you look at the Indian Penal Code, the smallest chapter of the IPC is crimes by public servants and all crimes are committed by individuals not by the state. Is that the experience of the last 75 years? I think that there could be a conversation on that this way of looking at the citizen with suspicion and what the state says, either through its law enforcement agency or through the prosecutor, should not be accepted without any questioning.

MS : Before concluding, one question slightly off the topic. Not an academic question, slightly on a personal note in your capacity as a lawyer. So this is an everyday battle for you. Zubair got relief but you will be handling several cases of other accused and it's an everyday ongoing battle for you and in many cases you might be facing adverse orders from the court and you are fighting against the mighty state and the police machinery. So how do you sustain your faith and the hope in the legal system? This is not just a question from me, many new entrants to the legal profession, they also have this doubt. How do you keep going without feeling dejected and disillusioned? How do you sustain your faith?

Grover : So it's not a question of faith for me. For me, I'm a lawyer, I really don't at this stage of my life think I can start doing anything else. But even that aside, I feel you have to engage with institutions to strengthen institutions. You don't abandon institutions. If i feel that the law should be advanced to ensure accountability for the police, create greater rights for citizens, then how would I do it but through engaging with the system. I do believe that democracy will be strengthened through our engagement, not by us retreating. I don't believe that one needs to sit back and simply comment and critique and abandon institutions. We have to preserve and strengthen our democracy. The state does not necessarily want to strengthen democracy. Peoples of the country want to strengthen democracy. I want the legal system to be independent to be attentive both to our constitutional rights as well as perhaps many rights of the more vulnerable and marginalized which courts are not yet hearing clearly. It is the job of lawyers to advance and espouse those causes and that's how jurisprudence develops and that's how a law develops and that really is an engagement. And the hope that strength that I get from is actually from the clients I represent and I feel as a lawyer it is not my place to say "oh what is the point of doing this". If that client, if that individual, if that human rights defender is willing to go forward and fight the battle, the least I can do is to take it forward in legal terms.

MS : So you would say that don't be a cynic, don't be skeptical, have faith in your system, engage with the institutions and fight your battle in a creative and constitutional manner. Thank you so much.