Courts are on trial in undeclared Emergency

The basic principles of law are jettisoned to deny liberty. As people from different walks of life are prosecuted and jailed for speaking truth to power, democracy is steadily losing its sheen
Image used for illustrative purposes only. (Express illustration | Soumyadip Sinha)
Image used for illustrative purposes only. (Express illustration | Soumyadip Sinha)

Indira Gandhi declared a National Emergency on June 25, 1975, under Article 356 of the Constitution on grounds of a breakdown of the constitutional machinery. Between June 25, 1975 and March 21, 1977, with the suspension of fundamental rights, several citizens of the country could not protect their liberties under Article 21 and 226 of the Constitution. The individuals targeted during this period, according to me, were not on trial. Instead, the courts were on trial.

The Madhya Pradesh High Court declared the suspension of fundamental rights to be unconstitutional. But the Supreme Court let us down. Justice H R Khanna, the sole dissenter, became the beacon for generations to come, for all who cherish their freedoms, as he stood up for the cause of liberty and the fundamental values of our Constitution. He was superseded. Justice M H Beg was appointed as the Chief Justice of India.

What we are witnessing today is an undeclared Emergency where without suspending Article 226 and Article 21 of the Constitution, the fundamental rights of citizens are being transgressed with impunity through the misuse of the law enforcement machinery. Like in 1975, it is not the accused but the courts which are on trial.

We are watching in disbelief the way institutional independence is being jeopardised. Citizens who choose to oppose policies and diktats of this government are being targeted. ‘Jail not bail’ seems to have become the norm in certain ‘sensitive’ cases where individuals are critical of the government and its policies. They include journalists, students, academics and those working at the grassroots and espousing the cause of the underprivileged and the marginalised.

It would not be appropriate to refer to such individual cases since these are sub-judice. However, it is of great concern that basic principles of law are jettisoned to deny people liberty. How does a judge justify admitting evidence statements made to a police officer and using these to convict the accused? Students are languishing in jail under draconian provisions of law merely because they chose to stand up and be counted, opposing the government and its policies. Journalists and students are being prosecuted under the provisions of the Unlawful Activities (Prevention) Act through investigating processes which are clearly highly suspect. Provisions of the Gangsters Act are misused to exploit the victims.

Those involved in communally charged public humiliation of minorities and Dalits, instead of being prosecuted, are protected. Apparently, fake encounters are lauded. Public representatives lose their membership in public bodies when defamation cases are filed in jurisdictions where the complainant hopes to succeed. The procedures and fundamentals of law are discarded in highly controversial cases. Publications perceived to espouse anti-government narratives are targeted. NGOs working at the grassroots find their accounts frozen. In some matters, law and justice seem to have lost their way.

No one can criticise or condemn the commencement of criminal proceedings against public functionaries. We find that such prosecutions are launched selectively against public servants either belonging to the opposition or in states where the opposition is in power. No one can be oblivious to the reality that there has been hardly any occasion since 2014 when public servants in a state where the BJP or its allies are in power are proceeded against with the same alacrity, zeal and tenacity as is apparent in proceedings against other public servants.

The court, too, cannot be unaware of this. Public servants against whom allegations have been made in the past and against whom cases are registered are not proceeded against because they happen to now hold public offices in governments ruled by the BJP or its allies.

I am sure that the judiciary, of which the legal fraternity is an integral part, is committed to upholding the rule of law. I have no doubt that judges wish to see our democratic institutions flourish and work independently. In matters where chargesheets stand filed, where the nature of offence is not in the category of heinous offences, and where allegations of corruption are yet to be proved, individuals are entitled to bail without being held in custody for years.

We have witnessed cases where the Supreme Court, in a case involving defection, kept the matter pending while awaiting the decision of the Speaker. The proceedings in the process were over in a month. In other cases, issues of defection are not decided for years, with adjournments being sought and granted. While the Supreme Court rightly espouses the cause of liberty for sustenance of our democracy, in reality, individuals languish in prison for long periods without a hearing and without relief.

The other key concern is the manner in which live yet sensitive cases are transferred and shifted to a bench which did not hear the matter earlier. I do not wish to question the right of the Chief Justice of the Supreme Court or of a high court to exercise their discretion in the manner they so wish, but there is an established practice that the bench which issues notice in the matter should hear the matter till fruition unless the judge concerned retires in the meantime or recuses himself. This is a matter of some concern.

These days, the fundamental features of our democracy are emasculated day in and day out. In the most crucial of moments, courts are silent. In a state of undeclared Emergency, those prosecuted are not on trial, courts are.

(Views are personal)

(Tweets @KapilSibal)

Kapil Sibal

Senior lawyer and member of Rajya Sabha

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