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Monday, August 02, 2021

UAPA bail: A triumph of rights and democracy

The recent bail orders of the student activists advance the cause of justice, strengthening Indian democracy


June 22, 2021 9:02:44 pm
Student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha outside Tihar prison in New Delhi. (PTI)

Written by Satvik Varma

Given the socio-political milieu we currently find ourselves enveloped in, we frequently need reaffirmation that our Constitution is supreme. That it provides the citizens many rights and liberties and has corresponding duties. That the rights can be restricted only in reasonable and limited circumstances. That our judiciary will step in to prevent state excesses and uphold the letter of the law and the spirit of our Constitution. That while the judicial system may be laden with delays, those are only cracks and it is otherwise intact and — as multiple recent judgments from across the country have demonstrated — adequately independent. And no matter how majoritarian a government we may have, we are still a democracy of the people, for the people and by the people.

While the judgments delivered by the division bench of Justices Siddharth Mridul and Anup J Bhambhani of the Delhi High Court are indeed only bail orders, an analysis of their contents and the jurisprudence they lay down highlights the role of constitutional courts. Namely, to interpret the law “purposively” and in a way that advances the objectives of the legislation. Its job is to read the law in such a way that it enhances personal liberties while maintaining a balance with the security of the state. It is to ensure that constitutionally accorded and legally protected citizen rights are not left to the mercy of executive supremacy. And at a time when society is polarised and fractured across various lines and where ideology has reached a vanishing point, courts will do all within their mandate to prevent the misuse of the law and alleviate the anxiety that has come to surround individuals.

For longer than we can imagine, law and society theorists have been preoccupied with attempts to explain the relationship between legal and social change. They view the law both as independent and dependent and variable (cause and effect) in society and emphasise the interdependence of the law with other social systems. British social reformer Jeremy Bentham expected legal reforms to respond quickly to new social needs and to restructure society. Contrastingly, German legal scholar Friedrich Karl von Savigny held that it is the law that follows social change. Whatever view one may support, it can’t be denied they influence each other. The law, after all, reflects the will and wish of society as we have witnessed in India in the decriminalisation of homosexuality or triple talaq being deemed against our constitutional values or the striking down of adultery or the recognition of the rights of the transgender community or the granting of equal status to women in temple entry.

This brings us to the fact that the interplay of law and society leads to the development of both.
Advancing this proposition, Nobel laureate Amartya Sen believes that legal development is not just about what the law is and what the judicial system formally accepts and asserts, but instead must “take note of the enhancement of people’s capability — their freedom — to exercise the rights and entitlements that we associate with legal progress.” For Sen, freedom is both the primary objective of development, and the principal means of development. Accordingly, he holds that development is enhanced in democracy by the protection of human rights. Such rights, especially freedom of the press, speech, assembly and so forth increase the likelihood of good governance. Resultantly, a nation’s development cannot be considered independent of its legal developments.

The Indian judiciary has made lasting contributions to our development whether by its conceptualisation of public interest litigation or simply by giving meaning to our Fundamental Rights by carrying forward the intention of our Constitution makers – for example, declaring privacy a Fundamental Right. In this process, our courts have strengthened the Indian federation, deepened our democratic ideas, facilitated the working amongst various arms of government and furthered the objective of our Constitution’s Preamble to promote fraternity and to maintain unity and integrity of the nation.

Examined with this spirit, the recent bail orders of the student activists advance the cause of justice, protect citizen rights, thereby strengthening our democracy, address the prevailing societal needs and consequently contribute to our nation’s development. After all, our courts do not function in a vacuum and our judges surely have views on what’s happening around them. Reports of the fact that less than 2 per cent of the people arrested under UAPA across the country in five years till 2019 were eventually convicted (per data compiled by National Crime Records Bureau) must have weighed on the judges, as the process then becomes the punishment. They must also have been informed that a challenge to the constitutional validity of the 2019 amendments to UAPA, that terms individuals as terrorists, is currently pending where, and while there’s no stay on the operation of the law, the state has not even filed its response. Should not the courts then reinstate the liberty of those incorrectly indicted? Doing right, Justices Mridul and Bhambhani only upheld our democratic traditions and advanced our constitutional values. In doing so, they restored people’s faith in our judiciary.

Going forward, one hopes that every time our democracy is in peril, our judges, in keeping with their oath to office bear true faith and allegiance to the Constitution and will, without fear or favour, affection or ill-will uphold the Constitution. If in the discharge of such duties, they embrace the role of judicial torch-bearers they will also be contributing to our nation’s development. Each time this happens will indeed be a great moment in the history of our democracy.

The writer is a senior advocate based in New Delhi

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