Democratic Rights

Address and Not Suppress

      Selective Truth is a Lie; Selective Justice an Injustice

Granting bail to Republic TV’s Arnab Goswami, Justice D.Y. Chandrachud and Justice Indira Bannerjee observed, “If we as a constitutional court do not lay down law and protect liberty, then who will?” Well said especially when people were dying to hear such words from the highest Court. A newspaper editorially commented that Supreme Court will do well to listen to its own counsel. Supreme Court refrained from laying down any law to protect liberty which is at a premium in RSS-BJP ruled India.

Justice Chandrachud reportedly remarked “If we do not interfere in this case today, we will walk on the path of destruction of personal liberty.” The Bench has reserved its judgement while ordering the bail; and it is eagerly awaited to see how the learned Judges propose to stop the walk towards destruction of personal liberties. One can only hope that that personal liberties are not only secured for only a section of citizens; those subscribing to the ruling ideology and dispensation. Any way they have little to fear, considering the galaxy of cabinet ministers including the Union Home Minister who came forward in his defense. The Central Govt. has many ways to secure their liberties, problem is for those who are targeted by the Executive. Many such examples were brought before the Court and it will be worthwhile to see what directions the apex Court issues or at least what observations the Judges of the apex Court make with respect to them. That will show whether the apex Court has taken a step in the direction of saving personal liberties of individuals, or has paved the way for further assault on the personal liberties of those raising their voice against injustice and oppression.

Many cases had been brought before the apex Court in defense of personal liberty of affected individuals. A recent case of a Kerala journalist, Siddique Kuppan, who was arrested on way to Hathras where a Dalit girl, a victim of gang rape and murder, was burnt by the police and administration, was brought before the apex court. He was framed under UAPA and even not allowed to meet his lawyer. He was advised by the Court to approach the local Court. And there are many such cases.

And that makes the good words selective which robs the law of one of its most prescient quality- that of uniformity and equality. Being harsh or soft, this is one quality essential to very existence of law. Even discretion and classification are rooted in principles of equality before law or equal protection of laws, enshrined in Indian Constitution (Article 14). There is no place of arbitrariness or selectivity. Removal of blindfold from the eyes of Lady Justice renders her prone to criticism of being selective seeing the person/s before her.

If an impression has gained ground over a year or more of the selective nature of justice being rendered by the apex Court, then it is time for the apex Court to do some introspection why such an impression has gained ground. That should always be the first response of learned and sagacious to criticism. Suppressing those who articulate such an impression will not serve the purpose if the purpose is to safeguard prestige of the higher judiciary.

There is glaring difference between fear and honour; peace of the graveyard is not the peace to be strived for. Fear may at times succeed in silencing the opposition but it only leads to driving it underground, in fact intensifying the perception. And there will always be some who will dare to call the emperor naked.

Attorney General KK Venugopal has not exactly enhanced the prestige or protected the dignity of the apex Court allowing eight people to file criminal contempt cases against Mr. Kunal Kamra saying that he had crossed a line, “It is time that people understand attacking the Supreme Court unjustifiably and brazenly will lead to punishment,” and “Today people boldly and brazenly condemn the Supreme Court and its judges in what they believe is freedom of speech.” But will it cure the disease i.e. the perception about the higher judiciary? AG’s words betray the perception that he would like people to be timid and not bold. And how does one understand “unjustifiedly” i.e. without justification. For that one has to go through whether any basis exists for such a perception. And for that we have go through the recent cases which came before the apex Court of the similar nature and what decisions have been made by the apex Court in those cases.

Moreover threatening tone of AG letter does neither behoove his office nor enhance the majesty of high office he holds. More pertinently and materially, AG in his letter to the advocates seeking his approval for the contempt, said, “This is gross insinuation against the entirety of the Supreme Court of India — that the Supreme Court of India is not an independent and impartial institution and so too its judges, but on the other hand is a court of the ruling party, the BJP, existing for the BJP’s benefit. All this in my opinion constitutes criminal contempt of court.”

Attorney General’s observations raise a number of questions that must be answered. If truth is any defense, then why an attempt should not be made to ascertain whether above given criticism contains any truth or any basis for the impugned statement. Or even truth is no defense according to the jurisprudence followed by the AG. In brief, will it be proper that this aspect that apex Court has favoured the ruling Party, cannot even be questioned. If so, we have definitely advanced beyond ADM Jabalpur case. And without ascertaining the truth and thereby baseless nature of the comment, only using the sword of contempt, can only silence but not further the truth. As one renowned thinker said “Justice is truth in action.” Though hardly put into practice in the class society, it is the ideal which is put before the people. The question here is whether the higher judiciary is dispensing as per the Constitution or looking over their shoulders to the powers that are.

AG has also raised the question of independence and impartiality of the apex Court as an institution. Should that too not be proved and further, on regular basis? Further, merely prohibiting questions relating to independence and impartiality of the apex Court will not make it so nor guarantee their continuing existence. That will make the institutions not independent and impartial in the true sense of the terms but independent of the very percepts they are to uphold i.e. the Constitution and the rights of the people enshrined in the Constitution and laws made under it.

One has been a witness to many-sided and effusive debate on the question of contempt in a recent case. Even the AG had pitched in with his comments. There were a number of eminent jurists who were quoted that the power of contempt should not be used to suppress dissent or dissenting opinion. So soon after that elaborate discussion, that this issue is being thrust again, is quite surprising.

After AG approval, it is up to the Supreme Court. People will be watching whether the apex Court lives up to its own pronouncements. The institution is not for delivering sermons but ensuring the sermons already existing in the Constitution. And doing so in the spirit i.e. equality before law and equal protection of laws. That will be the true defense of independence and impartiality of the institution, and not prosecution of a Stand-up comic who articulated his feeling that “Supreme Court” has given a partial decision. It is by guaranteeing Constitutional rights to all, rolling back the gross injustice that is being perpetrated by the Executive against democratic rights activists and anti-CAA protesters without any basis in facts, and stopping such abuses of authority that will go a long way in allying the perception. Do they deserve no protection of law? Ensuring their freedom and legal rights will be the course to correct the perception.

Otherwise, we are surely travelling on the path of destruction of personal liberties. Whether it is a warning or prophecy practice alone will unfold.

November 12, 2020