The Constitution of India guarantees the citizen certain Fundamental Rights. These include the right to freedom of expression, peaceful assembly and the right to equality before law. The right to life provides protection to all persons. All this is taught to the school students in primary classes. What then, begin this piece with a repetition of well-known facts. The need arises because what was taken for granted as fact has blurred into legal fiction and anyone acting on the assumption that the shield of his/her Fundamental Rights will ensure safety of life and limb does so at one’s own peril.
No one argues that the Fundamental Rights cannot be curtailed under any circumstances. The Articles in the Constitution are explicit that ‘reasonable restrictions’ can be put to ensure security and integrity of India, to preserve law and order and not to let anyone abuse these rights to trespass on the rights of others. This is the crux of the problem. Who decides what is reasonable and how long these rights can remain curtailed or suspended? Obviously it’s the executive the government of the day that has the primary responsibility to protect the sovereignty and integrity of the nation and maintain law and order.
Matters become murky when individual members of executive equate themselves with the state and unilaterally define ‘security’ in the manner that is totally arbitrary. No dissent or difference of opinion is brooked and the concept of right to freedom of expression and peaceful assembly to register protest ceases to have any meaning. It is not the first time that India is encountering dictatorial/authoritarian interpretation of reasonable restrictions imposed on Fundamental Rights. The dark days of the Emergency were a nightmare when the judiciary cringed and abdicated its duty to check the excesses of the executive.
Decades later the apex court admitted that it had erred grievously in ADM Jabalpur vs Shukla case. Only one judge, Sri HR Khanna, had the courage to register dissent and he paid a heavy price for it. No amends could be made to the victims. It should not be forgotten that the case refers to when an Emergency had been imposed. No one could imagine that archaic and draconian laws—particularly those pertaining to sedition—enacted by a colonial regime to harass and subdue a subject people would continue in Democratic Republic of India. MISA and DIR were abused during the Emergency but today we have even more harrowing laws that allow the police to detain any accused without warrant and right to bail. The jurisprudence of bail has been made to do headstand.
The Supreme Court’s decisions in different cases don’t appear to follow a consistent vision. This leaves the High Courts confused and the citizen petrified. In law the cardinal principle is that an accused is presumed to be innocent till proven guilty after proper investigation by a court of law. Unfortunately, many of the laws invoked against dissenters or political opponents put the burden of proving not guilty on the accused. This isn’t all. Anyone can accuse anyone of hurting his/her religious sentiments, insulting a high authority and of conspiring against the nation’s security. From stand-up comedians to teenaged schoolchildren have been apprehended on mere suspicion and dozens are languishing in police or judicial custody—some for months, others for years.
Some lucky ones have found interim relief from the Supreme Court. In most cases, the investigating agencies are unbridled. Working to please political masters, the cops in many states have disgraced their uniform. Partisan politics has played havoc with the concept of rule of law and the Fundamental Rights to equality before law. Raids by the IT Department or Enforcement Directorate are no less harassing than police from different states descending on one’s doorstep at odd hours. Multiplicity of cases filed in different jurisdictions entrap the accused in a web that is almost impossible to untangle and get out of. As if this isn’t bad enough, there are rowdy vigilantes on rampage—enjoying political patronage taking the law into their own hands issuing ultimatums to the police to act according to their whims or face consequences. Those in power enjoy unlimited immunity.
They can indulge in hate speech flaming violent passions without any fear of being penalised. They strut the stage flexing muscles trying to bully and browbeat the social media, a platform that the government hasn’t yet been able to bring to heel and make it kneel. It’s easy to launch ultra patriotic campaigns to rally round support and see a destabilising foreign hand everywhere but extremely difficult to sustain unsubstantiated claims. There can be an overkill caused by conspiracy theories spun out recklessly to divert public attention from one failure, roadblock or stalemate to another. The young, who comprise the majority of India’s population, are the future of the nation and shouldn’t and can’t be silenced. We can’t let the Fundamental Rights to be restricted nay, destroyed by the bigoted Rowdies who know nothing of Reason.
Pushpesh Pant pushpeshpant@gmail.com
Former professor, Jawaharlal Nehru University