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State must remember its obligations and duties to Constitution

Dushyant Dave writes: A pattern of the government using law to target critics and minorities grows clearer by the day. Judiciary must intervene.

ED searches at Harsh Mander's office in Adhchini, New Delhi, on Thursday, September 16, 2021. (Express Photo: Amit Mehra)

The searches conducted by income tax authorities on the premises linked to actor Sonu Sood and by the Enforcement Directorate on the premises linked to Harsh Mander compel me to write this piece.

I am clearly of the view that law must be enforced, but it must be enforced uniformly. I do not support violations of law by any citizen, whatever his social status. Citizens must obey the laws and when they breach them, the state has the right to initiate action against them. So far so good. But a pattern emerging over the last seven years shows that only a section of citizens is being acted against by the state. They belong to the Opposition, the minority community, activists, dissenters and the likes. It is not being suggested that they should be spared if they have violated the laws.

But the pattern reveals that the state is merely interested in targeting them without credible evidence and giving wide publicity to its actions, unconcerned with ultimate results. Over the years, a large number of such persons have been found to be innocent by the competent courts. But at what cost? These innocent citizens have spent long periods in prison, have suffered mentally, socially, economically and their dignities have been taken away.

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A section of the media which is eager to damn these citizens as anti-national, corrupt and terrorists rarely covers the ultimate honourable discharge of these citizens. The state ends up achieving its objective of creating fear and punishing innocents to prevent them from challenging the state. The media coverage of the Nizamuddin Markaz events is a classic example of the entire minority community being vilified by a section of the media. Thousands of innocent citizens ended up spending months in jails and the cases against them drag on, while thousands responsible for spreading Covid during elections, or the Kumbh Mela and other events have not even been proceeded against. Thousands of innocents have been arrested in connection with the anti-CAA-NRC protests, while those who openly encouraged violence, resulting in the deaths of innocents, have not been proceeded against.

The recent decisions by courageous judges of subordinate courts and the high courts have exposed these illegalities in state actions. This does not augur well for a democracy like India.

“Rule of law” is the basic rule of governance of any civilised state. The Constitution of India is founded on the rule of law. “Be you may howsoever high, the law is always above you” is a principle that the Supreme Court has affirmatively laid down.

Every state has a constitutional obligation to protect the life and liberty of its citizens. There cannot be any deviation from this because of any extraneous factors like caste, creed, religion, political belief and ideology. The constitutional principle of equality is concerned not merely with the law but its enforcement and application. A rule of law can only be said to have been achieved when laws are applied equally, free of any bias and without irrational considerations.

When “a section of the society” is being acted against by the state in this manner, it leaves the citizens completely vulnerable. Justice eludes them. Even a day’s wrongful confinement or even an embarrassing search or raid against them violates constitutional guarantees and takes away their life and liberty in one manner or the other.

For ensuring supremacy of the rule of law, the Constitution has assigned a special task to the judiciary. It is only through courts that rule of law unfolds its content and establishes its concept.

Yet, the state is unstoppable. Because the courts, which are enjoined by the Constitution to ensure compliance of the rule of law, are not acting as authoritatively as the Constitution mandates. Or are acting too slow or too late. As a result, a “fear psychosis” is allowed to prevail in the country to prevent citizens from raising their voices and standing up against illegal, arbitrary and unjust laws or actions or inactions by the government of the day. The few who do muster courage to stand up and speak, the state preys on them. The judiciary must intervene with strong and far-reaching judgments to stop this trend.

To fight terrorism which has no religion, it is not necessary to malign a community. The investigating agencies and the police are quick to identify the religions of the persons acted against and routinely leak information to select media to enable them to amplify the same. Resultantly, an atmosphere is being created that the law-breakers in this country belong only to a certain section of the society.

Ambedkar had warned, “To diehards who have developed a kind of fanaticism against minority protection I would like to say two things. One is that minorities are an explosive force which, if it erupts, can blow up the whole fabric of the State… The other is that the minorities in India have agreed to place their existence in the hands of the majority… They have loyally accepted the rule of the majority, which is basically a communal majority and not a political majority.”

Equally, Sardar Patel had noted: “It is for us who happen to be in a majority to think about what the minorities feel, and how we in their position would feel if we are treated in the manner they are treated.”

The Supreme Court must remind the state to act constitutionally, lawfully and justly in every case across the country, especially in sensitive matters involving those who oppose the party in office with peaceful means.

Let us hope that the state realises its duties and obligations to the Constitution and let us hope and pray that the Supreme Court reminds them sternly in times to come.

This column first appeared in the print edition on September 18, 2021 under the title ‘The partisan state’. The author is a senior advocate at Supreme Court.

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