At long last the judiciary has, it seems, woken up to its constitutional obligations. The Allahabad High Court in a recent judgment has sharply wrapped on the knuckles of the Yogi Adityanath government for having violated the fundamental right to privacy of some of the protestors whom it sought to name and shame. The Chief Justice took suo moto notice of the disgraceful conduct by the administration obviously working under great political pressure. In a stinging rebuke, the judge has instructed the government to take down the posters on the wall and report the action taken.
The damage to the aggrieved parties has been done but what is reassuring is that the citizens can no longer feel abandoned by the custodians of their rights. One hopes that this shining moment is not a fleeting flash of lightening and awe-inspiring thunder. We must underline that the court made it quite clear this was not the great violation of an individual’s right to privacy but a glaring example of how administration in the state thinks that it can get away with anything it does with utter disregard to provisions of law and due process.
It is distressing that those pleading on behalf of the government continued to argue that the court has erred in prioritising public interest. The learned judge removed all ambiguities by reiterating that courts cannot remain mute witnesses to acts of great injustice. Their job is to ensure justice without fear and favour. Unfortunately, of late an impression has been created that the separation of powers between the executive and judiciary is being eroded steadily and very fast. The apex court comes down heavily but whimsically on those who, to its mind, seek to subvert the majesty of law and dignity of the court.
The law of contempt, as it exists in our land, leaves no scope for expressing dissent, and criticising an obviously flawed judgment. There is no appeal to a higher court if one incurs the wrath of a judge in the Supreme Court. The learned judges are famous for writing judgments studded with choicest quotations from the classics. Somehow the quality of mercy lauded by the Bard seems to escape them. The matter of an ‘intemperate’ speech by former officer and social activist Harsh Mander displays this in a disturbing manner.
The judge of the Delhi High Court who castigated the Delhi Police for its role in the recent riots was swiftly transferred overnight. (To be fair, the judge was already under transfer but surely the manner in which his departure was accelerated caused great consternation). This learned judge had asked the police to report regarding the filing of FIRs within 24 hours as delay in this matter would only reinforce the suspicion that these riots were part of a pogrom/genocide. As the adage has it, justice delayed is justice denied. If the courts keep postponing adjudicating explosive disputes that are before them and tell us that such matters can only be taken up when tempers cool down and normalcy returns, people are likely to lose faith in the judiciary.
The Central Government too has taken some false steps. First, a 48-hour ban was imposed on two TV channels whose coverage had offended the sensitivities/sensibilities of the powers that be. The charge was that these channels were partisan and they had crossed the line by criticising Delhi Police and the RSS. While one may grudgingly concede that berating the cops carries the hazard of demoralising the rarest of the rare hardworking and honest policemen, adding the RSS to the list of ‘untouchables’ has only compounded the confusion. The ban was hastily withdrawn to demonstrate that our government values the freedom of the press. Why then the ban in the first place?
To make matters worse, the UN commissioner for human rights has petitioned the Indian Supreme Court to intervene in the case contesting the constitutionality of CAA. Now, only a mentally challenge person will contest that this is not an internal matter that concerns our sovereignty. It follows that no external agency or power can be allowed to interfere. Our very able foreign minister has valiantly defended the Indian position in different forums. Harish Salve, QC, has also argued eloquently that the CAA is (constitutionally) on a strong wicket. However, both in domestic politics and in international relations, perception is no less important than reality. Most regrettably, all the recent developments have distorted this discourse.
The general impression is that the present government suffers from incurable arrogance and is not prepared to yield an inch. The space for dissent and difference of opinion on matters of public policy has undoubtedly shrunk. Jingoistic supporters of the ruling party have started behaving as if they are above the law and they continue to abuse obsolete sedition laws to harass anyone they dislike. Javed Akhtar is the most recent celebrity to be targeted. We hold no brief for anyone but do firmly belief that patriotism cannot be the monopoly of a single political party, nor can the rule of law be suspended in a partisan manner for electoral gains.
Former professor, Jawaharlal Nehru University firstname.lastname@example.org