[Editorial Analysis] Defending liberty against political prosecution

Mains Paper 2: Polity
Prelims level: Selective prosecution
Mains level: Separation of powers between various organs dispute redressal mechanisms and institutions.


• The November 27, 2020 Supreme Court judgment granting TV anchor Arnab Goswami bail says, not without considerable irony because of the personality involved.

• Question rise on Is this use of state power legally permissible? Is there no escape for victims of such abuse of state power? The Curt bringing an action for wrongful prosecution years? to protect the life and liberty of the accused?

• The Power of liberty is most pernicious and widespread forms of abuse of state power in India involves the police and enforcement agencies selectively targeting political and ideological opponents of the ruling dispensation to interrogate, humiliate, harass, arrest, torture and imprison them, ostensibly on grounds unrelated to their ideology or politics.

Is separating two legal issues?

• The illegality involved in this type of prosecution is not self-evident under article 20 (3) No person accused of any offence shall be compelled to be a witness against himself.

• The merits of the criminal case filed against them, against the concept of Natural justice.

• Once the proceedings fail under the first issue, there is no legal basis to proceed to the second issue.

Is this being question of Selective prosecution?

• The applicable legal standard is that the police and prosecutors in common law jurisdictions enjoy vast discretion in deciding who they may pursue and who they may spare, the choice of accused must not be based on grounds that violate Constitutional rights, including the Article 14 right to equal protection of the law.

• The accused should not be selected, either explicitly or covertly, on constitutionally prohibited grounds (Violation of FR). The illegal selection of accused based on grounds prohibited by the Constitution is called “selective prosecution”.

• A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.

What is the selective prosecution?

• The selective prosecution is a procedural defense in which a defendant argues that they should not be held criminally liable for breaking the law, as the criminal justice system discriminated against them by choosing to prosecute.

Is selective prosecution being illegal:

• So-called selective prosecution is only illegal if a defendant is singled out for a purpose that is itself wrongful, such as discrimination based on race, gender, or political or religious affiliation.

• Like claims of a prosecutor’s vendetta, allegations of selective prosecution may get some press play but are almost never heard by juries.

• There is nothing illegal about prosecutors being selective. Law enforcement has every right to allocate limited human and financial resources and pursue some but not all perpetrators.

Constitutional value of Right to liberty:

• “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

Article 21 secures two rights:

• Right to life, and

• Right to personal liberty.

• Article 21 of the Constitution of India, 1950 provides that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Failure of Indian courts:

• The courts have not recognised selective prosecution as an independent claim because of the erroneous assumption that the lawfulness of prosecution can only be taken up after the trial, if the accused is acquitted.

• The Report of the Law Commission (2018) on ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’ discusses remedies for wrongful prosecution available only if and after the accused is acquitted.

• The right against selective prosecution cannot be extinguished by conviction.

• The Separate from post-acquittal actions for wrongful prosecution (which will still be available), the claim of selective prosecution is a threshold issue that is required to be adjudicated at the outset of criminal proceedings (even during the investigation stage) irrespective of the merit of the charges.

• Recent judgment “a single day deprived of liberty is a day too many”, while every other court including the Supreme Court itself rejects bail applications of people jailed for years and months without trial.

Previous judgment on article 14 and 21:

• The Supreme Court in the Kharak Singh’s case,: The Court observed that the right to personal liberty in the Indian Constitution is the right of an individual to be free from restrictions or encroachments on his person, whether they are directly imposed or indirectly brought about by calculated measures.

• The Supreme Court has held that even lawful imprisonment does not spell farewell to all fundamental rights. A prisoner retains all the rights enjoyed by a free citizen except only those ‘necessarily’ lost as an incident of imprisonment.

Way forward:

• Much of what is claimed to be discrimination results from efforts to target prominent people. Perhaps celebrities and politicians are indeed discriminated against in this sense, but such extra scrutiny is an occupational hazard.

• Unless a discriminatory effect as well as a discriminatory purpose can be proven, no claim will be sustained. Such selectivity could also be a constitutional.

• The Article 14 and of the right to life and personal liberty under Article 21.” To strengthen the protection of civil liberty, equality and democracy, it is time our courts at all levels recognise selective prosecution as a threshold constitutional defence against the abuse of police and prosecutorial power.

• The scope of ‘procedure established by law’ and held that merely a procedure has been established by law a person cannot be deprived of his life and liberty unless the procedure is just, fair and reasonable.

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