Udayon Misra
In the midst of this encircling gloom comes a judgment which brings a ray of hope that the judiciary can once again instil confidence in the minds of the people by protecting them from the excessive and arbitrary reach of an executive working at the behest of an increasingly anti-democratic state.
The ADM Jabalpur vs Shivkant Shukla, also known as the habeas corpus case during the Emergency (1975-77) is justifiably seen by many as the lowest point the Indian judiciary reached in the post-independence period. The judgement was delivered on April 28, 1976 by a five-judge bench of the Supreme Court consisting of Chief Justice AN Ray, Justices HR Khanna, MH Beg, YV Chadrachud and PN Bhagwati. The 4-1 judgement in which Justice Khanna was the sole dissenter, ruled validating the presidential order of June 27, 1975 which had has suspended all rights conferred by Articles 14, 21 and 22 of the Constitution and declared that no person had any locus to move any writ petition under Article 226 before a high court for habeas corpus or any other writ or order. The Supreme Court said this while setting aside as many as nine high court judgements favouring the enforcement of fundamental rights during the Emergency. During the hearing, Attorney General Niren De stated, in answer to a question by Justice Khanna, that for all practical purposes, the right to life also remained suspended during the Emergency! Justice Khanna, in his dissenting judgement, stated that the right to life and liberty of the citizen predated the Constitution vide Article 372 and that Article 21 was not the sole repository of these rights. Contrary to this position, all the other judges not only stood by the Emergency proclamation and at least one spoke of the ‘almost maternal’ care that the authorities took of the detenus. It was no coincidence that subsequently Justice Beg was made the Chief Justice, superseding Justice Khanna who resigned.
Well, these are well known facts. Yet, they need repeating because they remind us of those dark days when the highest judiciary of the land had failed to protect the right to life and liberty of the citizens.
Those who remember those dark days of the Emergency would recall the sense of desperation which overtook us all when this judgement was delivered. But within a year things changed radically and Mrs Gandhi was voted out of office.
In the years that followed, the judiciary gradually recovered its stature and more than 40 years later in August 2017, a nine-judge Bench, led by Chief Justice JS Khehar, overruled the Supreme Court’s majority opinion in the habeas corpus case and declared it as seriously flawed, declaring that ‘life and personal liberty are inalienable to human existence’. A wrong which had long tainted the country’s judiciary had finally been corrected. The Emergency had shown how the time-tested judiciary of the country with a long heritage had given in to the directives of the executive and paved the way for the strengthening of authoritarianism. Had it not been for the common Indian voter who showed uncommon acumen to defend democracy in the 1977 polls, perhaps the slide into authoritarianism would have continued.
Today, once again, parallels are being drawn between the Emergency days and the present situation when mere dissent is being dubbed as sedition and any questioning of the Government is seen as being anti-national. This is being attended to by strong indications that the judiciary as a whole has become increasingly subservient to the executive and has procrastinated in matters concerning the rights of the people which demand immediate attention. While the Government has taken free recourse to colonial laws like the one on sedition to curtail the legitimate voice of the people and scores of student and youth activists have been put behind bars, the judiciary has certainly not acted with the alacrity called for in defending the fundamental rights of the people. Matters like the abrogation of Article 370 and the arbitrary detention of political activists have been left in cold storage and matters of bail in certain cases involving leading dissidents of the country have been dealt with rather cursorily. The impression seems to have grown that the judiciary has been progressively giving up its role as the defender of the rights of the citizens, thereby beginning the process of erosion of the last bastion of hope for the people in an increasing climate of government repression.
In the midst of this encircling gloom comes a judgment which brings a ray of hope that the judiciary can once again instil confidence in the minds of the people by protecting them from the excessive and arbitrary reach of an executive working at the behest of an increasingly anti-democratic state. While granting bail to the young environmentalist Disha Ravi, Additional District and Sessions Judge Dharmendra Rana said: “Considering the scanty and sketchy evidence available on record, I do not find any palpable reasons to breach the general rule of ‘bail’ against a 22-year-old young lady, with absolutely blemish-free criminal antecedents and having firm roots in the society, and send her to jail.”
The observations made by the judge regarding the case are of great relevance to the state of human rights in the country today. Hence, let us take them up one by one: (1) Regarding the charge of sedition, the judge observed the offence of sedition “cannot be invoked to minister the wounded vanity of the governments”, and that there must be incitement to violence for Section 124A to be put into effect. Adding that “an aware and assertive citizenry, in contradistinction with an indifferent or docile citizenry, is indisputably a sign of a healthy and vibrant democracy…”, the judge maintained there was no evidence of sedition and conspiracy against Disha. (2) On the Delhi Police’s allegation that Disha had colluded with Khalistani elements of the Poetic Justice Foundation, the judge declared that “mere engagement with persons of dubious credentials” is not enough to indict a person but it is the purpose of such engagement that is relevant for deciding culpability. (3) On the charge that Disha Ravi had incited violence on Republic Day through her toolkit, the judge said that simply because she shared a platform with people who were opposed to the farm laws, it cannot be presumed that she supported secessionist tendencies “in the absence of any evidence to the effect...”. (4) Regarding the toolkit which was painted as seditious by the police, the judge concluded that there was no call for violence whatsoever in the toolkit and that creation of a WhatsApp group or being editor of an innocuous toolkit is not an offence. He also added: “Citizens cannot be put behind bars simply because they disagree with the government” and that they are the “conscience keepers of the government in any democratic nation”. (5) Regarding the right to dissent, the judge clearly upheld it by saying that “the right to dissent is firmly enshrined under Article 19 of the Constitution of India,” and that “there are no geographical barriers on communication. A citizen has the fundamental rights to use the best means of imparting and receiving communication, as long as the same is permissible under the four corners of law and as such have access to audience abroad.” This is a significant observation, especially in view of the government outcry against mobilization of international opinion in favour of the peasants’ movement.
These landmark observations raise fresh hope for all those now incarcerated without any tangible evidence against them. Needless to say, Dharmendra Rana has provided a much-needed breath of fresh air to the judicial scene in India.
