Jailing of Actor Chetan Kumar Shows Judicial Truancy Still at Play

The mandate of law requires that a magistrate not act as an extension of the executive. It is for this reason that she or he has not only the power to refuse judicial remand, but also the responsibility to justify it.

From media reports, it appears that a Bengaluru magistrate’s court on March 21, 2023 remanded actor Chetan Kumar ‘Ahimsa’ to judicial custody for 14 days – i.e. sent him to jail – in a first information report (FIR) instituted under Sections 295A and 505(2) of the Indian Penal Code (IPC), both of which are punishable by imprisonment which may extend to three years or with fine or both.

The charges – of ‘deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs’ and making ‘statements creating or promoting enmity, hatred or ill-will between classes’ – stemmed solely from a tweet that Kumar posted on March 20, 2023 in which he wrote that ‘Hindutva is built on LIES’ and then gave specific examples.

Even without going into the contents of the tweet – which fall squarely within the bounds of free speech protected by the constitution – I am not sure the judicial magistrate has acted correctly. I say so because the Supreme Court in Arnesh Kumar vs State of Bihar (2014) elaborately dealt with the police’s power of arrest and remand – i.e. Section 41 of the Code of Criminal Procedure (CrPC) – which mandates that the arresting officer be satisfied that an arrest is actually necessary in a matter where the alleged offence carries a maximum sentence of under seven years. The court provided a list of grounds that could be invoked to justify the arrest:

  1. to prevent a person from committing any further offence;
  2. for proper investigation of the offence;
  3. to prevent the accused from causing evidence to disappear;
  4. to prevent the accused from tampering the evidence or offering inducement threat or promise to the witness so as to dissuade  him from disclosing such facts to the court or to the police officer,
  5. or unless such person is arrested, his presence in the court whenever required cannot be ensured.

Even though the police officer is not required to record her or his reasons for making an arrest, the decision undoubtedly has to be based on one or more of the five grounds mentioned above. It thereafter has to pass the scrutiny of the court. If the magistrate is satisfied that the police was justified in taking a person under police custody, she or he has to record the reasons for their satisfaction u/s 167(3) CrPC and then take the accused person into judicial custody. 

It is clear, therefore, that the transfer of a person from police to judicial custody is not a routine matter. The mandate of law requires that a magistrate not act as an extension of the executive. It is for this reason that she or he has not only the power to refuse judicial remand, but also the responsibility to justify it. Sadly, a magistrate almost never uses their power and only sometimes exercises responsibility. 

I may also remark here that the legislature, by letting off the executive from justifying an arrest, effectively allows it to not be answerable to the ‘procedure established by law’ – the catchword of Article 21 guaranteeing everyone protection of life and personal liberty.

To come back to the case of Arnesh Kumar, the apex court in its endeavour to ensure that police officers do not arrest an accused person unnecessarily and that magistrates do not authorise detention casually and mechanically, directed the state governments to provide all police officers with a checklist containing specified sub-clauses of Section 41 CrPC, which in turn the police officer has to fill in and place before the magistrates. 

Importantly, it also stated that judicial magistrates authorising detention without recording reasons would be liable to departmental action by their respective high courts. Thus, the immunity hitherto enjoyed by a judicial officer – that she or he could get away with passing any order – was taken away. They are expected to be accountable to the law of the land or face the consequences. 

In my opinion, such a strong order was passed because magistrates continued and still continue to pass such mindless orders – despite the law and court rulings stating that routine, default remand amounts to curtailment of an individual’s Article 21 rights.

SC still monitoring, but what will HC do?

Fortunately, the law on bail is still being monitored and developed by the apex court. In the case of Satender Kumar Antil, the court has categorised offences on the basis of their punishments and given guidelines to the state and to high courts as to how to deal with them. 

While hearing a miscellaneous application related to its guidelines on March 21, 2023, the apex court noted its unhappiness over the fact that the district judiciary was not complying with its directions on bail. It remarked that those magistrates who were passing orders in derogation of law may need to be sent to judicial academies for upgrading their skills. Also, the high courts were required to ensure that the lower judiciary was following the law of the land and that judicial work be withdrawn from magistrates who pass such orders. In other words, the Supreme Court is trying to ensure that magistrates and district judiciary abide by and enforce the law.  

With the Supreme Court watching out for judicial truancy, let us see how the Karnataka high court acts.

In the context of my article, I may take the liberty of quoting from V. Suresh’s article on K.G. Kannabiran. Described as a genial giant, the insurgent jurisprudent and constitutional visionary – in today’s language, a true anti-nationalist – once stood before a TADA court and said, “Mr Judge! Are you prepared to resign your judgeship?”

A stunned TADA court bustling with activities suddenly became quiet. The tension was palpable. The judge thundered, “Mr Kannibiran, you risk contempt of  court.”

“Contempt is your prerogative, the tyranny with which courts silence those who challenge them. But I point out, sir, it is you who is guilty of violating the Indian Constitution; don’t forget you took an oath to implement the Constitution. Today, if you say constitutional mandates apply only to the High Courts and not the subordinates courts, we are within the law to demand that you resign for disregarding the constitution.” 

This unfortunately has been the bane of our country. Those in power, render the constitution powerless.

Anjana Prakash is a former judge of the Patna high court and practices in the Supreme Court.