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Sunday, April 11, 2021

Courts sound the bell for liberty

P Chidambaram writes: Just as we were giving up hope, there are signs that the defence of individual liberty is not a lost cause.

Written by P Chidambaram
Updated: February 28, 2021 8:38:11 am
The court — especially the lower judiciary — was a passive spectator, routinely upholding arrests and mindlessly sending people to police custody or judicial custody.

Just as we were giving up hope, there are signs that the defence of individual liberty is not a lost cause.

The idea that India was being ruled by foreigners who had no ‘right’ to rule India or deprive Indians of their liberty came very late to India, if you consider that, in America, the Declaration of Independence was signed on July 4, 1776.

Over a hundred years later, the idea of Independence — of a sovereign Indian state — germinated in India. At the Calcutta Congress in 1906, Dadabhai Naoroji sought Swaraj, but it was for limited self-government. In 1916, Bal Gangadhar Tilak and Annie Besant started the ‘Home Rule’ movement and demanded the status of a ‘dominion’ under the British Empire. It was only at the Lahore Congress in 1929 that the Congress Working Committee adopted the declaration on Purna Swaraj or complete independence.

On attaining independence, India borrowed heavily from ideas that were in vogue in France and the United States, in particular the war cry of the French Revolution, “Liberty, Equality and Fraternity”, and the statement from the US Declaration of Independence “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”. The key word is Liberty.

Assault on Liberty

Never before in the history of independent India have the powers of the State been mobilised so ruthlessly to suppress every voice of dissent or protest or defiance. During the Emergency (1975-77), the target was the political opposition. Now, the target is every voice of dissent — be it political, social, cultural, artistic or academic. The farmers at Singhu and Tikri are protesting against the farm laws, not against the BJP as a political party; yet they are targeted by the investigating agencies. There are voices of protest against crimes perpetrated on Dalits, against discrimination, against price rise, against denial of information, against polluters, against the corrupt, against police excesses, against monopolies, against cronyism, against denial of workers’ rights, against ruinous economic policies and so on. Every voice of dissent or protest is regarded as opposition to the BJP government and is sought to be suppressed.

Ms Disha Ravi was supporting the farmers’ protests, by all accounts she was not a political partisan, yet she was portrayed as an enemy of the state. Before her, there was a journalist, Mr Siddique Kappan, who set out to write a story on the victim of rape and murder in Hathras; he was portrayed as a conspirator to overthrow the established government. Students and women protesting the Citizenship (Amendment) Act were portrayed as the tukde tukde gang attempting to break up the sovereignty and integrity of India. Ms Nodeep Kaur supported workers fighting for their rights and she was jailed on charges of rioting and attempt to murder. A joke that was not uttered attracted the charge of outraging religious feelings and Munawar Faruqui, a comedian, was put in jail. The assault on every aspect of liberty is complete and manifest.

Passive Spectators

The court — especially the lower judiciary — was a passive spectator, routinely upholding arrests and mindlessly sending people to police custody or judicial custody. The settled law of the country was not followed. In State of Rajasthan vs Balchand, Justice Krishna Iyer had declared that “The basic rule may perhaps be tersely put as bail, not jail….” In Manubhai Ratilal Patel, the Supreme Court had underlined the duty of the Magistrate to

“… apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all”. Despite these rulings, courts merrily send people to jail.

The saga of under-remand and under-trial prisoners is an outrageous violation of liberty. Once in every month or two, the prisoner will have a date in court. Invariably, one of the following will happen: the Investigating Officer will be absent or the Prosecutor will be absent or the Prosecution Witness will not turn up or the medical report will not be ready or the Judge did not have time or the Judge will be on leave. The prisoner will return to jail with another ‘date’ and fading hope. It is not much better in the higher courts: thousands of bail applications are pending in the High Courts and the Supreme Court and are rarely disposed of in one hearing. I have found that the main reason is the stubborn opposition of the investigating agency (police, CBI, ED, NIA, etc) to every application for bail.

Reassuring Verdicts

An Arnab Goswami has its lessons. The Supreme Court (Justice D Y Chandrachud) reminded us that “Deprivation of liberty even for a single day is one day too many.” I am happy that many more judges are no longer tolerating the bull-headed opposition of the investigating agency and are weighing in favour of liberty. In Varavara Rao, the High Court of Bombay granted the 82-year old poet bail on medical grounds. In Disha Ravi, Judge Rana underlined the essence of democracy: “Difference of opinion, disagreement, divergence, dissent or for that matter even disapprobation are recognized legitimate tools to infuse objectivity in state policies.”

As courts uphold liberty, I feel as if a second struggle for independence has begun, and those languishing in jails may be able to breathe the air of liberty.

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