Justice A P Shah delivered a trenchant critique of the state of the judiciary. Speaking on the occasion of the Justice Hosbet Suresh Memorial Lecture, the former Chief Justice of Delhi High Court made no secret of his anguish at the abdication of the responsibilities of the apex court towards the totally destitute in India.

The lecture, “The Supreme Court in Decline: Forgotten Freedoms and Eroded Rights” was delivered on 18th September, 2020. The event was organized collectively by Centre for Study of Society and Secularism, Bohra Youth Sansthan, Central Board of Dawoodi Bohra Community, Citizens for Justice and Peace, Institute for Islamic Studies, Peoples’ watch and Majlis Law Centre.Justice Hosbet Suresh was also posthumously conferred with the Dr. Asghar Ali Engineer Lifetime Achievement Award, 2020.

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“In India today, all the institutions that hold the powerful accountable are being systematically destroyed and it all began in when the BJP came to power.”

Indeed, the government is using every imaginable means, to silence any and all dissenting opinion, and to clamp down on any alternate views that might exist. More problematically, the judiciary is watching all this happen by the sidelines, like a mute spectator, without uttering a word.


Eroded Rights

Another kind of repression that is happening, perhaps unprecedented in modern India, is the stifling of the right to protest and to free speech. The executive is spearheading this, and the judiciary is either tacitly agreeing with the executive overtly, or maintaining silence around the issue. If we want to boast about being citizens of a democratic nation, this ought to be the first thing that worries us.

Take the protests against the clearly unconstitutional Citizenship Amendment Act (CAA). The constitutionality of the law was challenged in the Supreme Court, but the Court itself avoided taking up the matter for flimsy reasons. Meanwhile, the government has desperately tried to silence protestors. Indeed, the government is using every imaginable means, to silence any and all dissenting opinion, and to clamp down on any alternate views that might exist. More problematically, the judiciary is watching all this happen by the sidelines, like a mute spectator, without uttering a word.

Different strategies are employed in different states. In Uttar Pradesh, its Chief Minister said that he would take “revenge” against protestors, and that chanting “azadi”, or ‘freedom’, would amount to sedition! Police have been given license to run riot against peaceful protestors, by arresting them, destroying vehicles, and even entering homes. Targets tend to be young Muslims. A combination of charges under the National Security Act and the Goonda Act were used in UP.
36.But the burning issue in this context has surely been the Delhi riots. The government has been targeting those who express an honest view, and engage in honest protests, and even, on occasion, stage a play!

Unarmed students have been attacked by the police. Anyone critical of the establishment, regardless of their intentions, such as Apoorvanand and Yogendra Yadav, are implicated at the slightest opportunity. The strategy in Delhi has been to charge individuals with criminal offences of rioting, unlawful assembly, criminal conspiracy, and that awful colonial legacy that is sedition, to name but a few, in conjunction with the (newly interpreted) Unlawful Activities Prevention Act (UAPA). Contrast this treatment of civilians with that of leading politicians of the ruling BJP who have publicly delivered inciteful speeches. Shockingly, no punitive action was taken against them. Instead, the one judge who showed some inclination to take action was conveniently transferred.

The arrests here have been to a template: if a person expresses a legitimate view against the CAA, he is promptly labelled an anti national, and the law enforcement machinery kicks in. It does not matter that the CAA is a blatantly unconstitutional law. The police says that the protesters sought to “execute a secessionist movement in the country by propagating an armed rebellion” in which “the anti-government feelings of the Muslims will be used at an appropriate time to destabilise the government.

The former police officer, Julio Ribeiro, has pointed to the lack of a fair investigation in the Delhi riots, drawing similarities with the 1984 riots here. He rightly said that “riots recur in India because of the impunity accorded to one section by the political establishment of the day”. Police investigations in the riots have been based on mere “disclosures”, with no concrete evidence. Surely, this goes against all principles of fair investigation. By taking action against peaceful protesters, but deliberately failing to register cognisable offences against those making the hate speeches that triggered the riots in Delhi, the Delhi police has been accused of being partisan and politically motivated. With the police taking a majoritarian stance as well, effectively, the real culprits of the violence belonging to the majority community are allowed to get away.

Why are the political establishment, and the police so emboldened? Undoubtedly, it is because of the weak judiciary that we have in India today. Had the Supreme Court not remained a mute spectator, and had it intervened more proactively, all this would arguably not have happened. Instead, the Supreme Court conveniently declined to intervene, showing no urgency in wanting to deal with these problems. For weeks, the matters involving many of these issues (for example, the Delhi riots) kept getting adjourned.

Even where matters were heard and decided, when they were appealed, there was judicial silence. When the Allahabad High Court directed that protestors’ photographs put on hoardings should be pulled down in 24 hours as the action was unsupported by law, in appeal by the UP government, the two-judge Supreme Court bench agreed with the High Court on the unlawfulness of the action, but it still mysteriously made a reference to a three-judge bench, effectively permitting the state to ignore the High Court order.

To make matters worse, the Supreme Court’s April 2019 decision in NIA vs. Zahoor Watali on the interpretation of the UAPA has affected all downstream decisions involving the statute. This decision has created a new doctrine, which is that effectively, an accused must remain in custody throughout the period of the trial, even if it is eventually proven that the evidence against the person was inadmissible, and the accused is finally acquitted.

The illogic of this veers on the absurd: Why must an accused remain in jail only to be eventually acquitted? According to the decision delivered by Justice Khanwilkar and Justice Rastogi, in considering bail applications under the UAPA, courts must presume every allegation made in the First Information Report to be correct. Further, bail can now be obtained only if the accused produces material to contradict the prosecution. In other words, the burden rests on the accused to disprove the allegations, which is virtually impossible in most cases. The decision has essentially excluded the question of admissibility of evidence at the stage of bail. By doing so, it has effectively excluded the Evidence Act itself, which arguably makes the decision unconstitutional. Bail hearings under the UAPA are now nothing more than mere farce. With such high barriers of proof, it is now impossible for an accused to obtain bail, and is in fact a convenient tool to put a person behind bars indefinitely. It is nothing short of a nightmare come true for arrestees.

This is being abused by the government, police and prosecution liberally: now, all dissenters are routinely implicated under (wild and improbable) charges of sedition or criminal conspiracy AND under the UAPA. Due to the Supreme Court judgement, High Courts have their hands tied, and must perforce refuse bail, as disproving the case is virtually impossible. As a result of this decision, for instance, a High Court judge can no longer really adjudicate and assess the evidence in a case. All cases must now follow this straitjacketed formula of refusing bail. The effect is nearly identical to the draconian preventive detention laws that existed during the Emergency, where courts deprived people access to judicial remedy. If we want to prevent the disasters of that era, this decision must be urgently reversed or diluted, otherwise we run the risk of personal liberties being compromised very easily.

This abuse of the UAPA and constant rejection of bail applications of accused as a means of silencing opposing voices can be seen most in the Bhima Koregaon cases, where mere thought has been elevated to a crime. In this matter, involving the arrests of many individuals, the so-called evidence was a typed, unsigned, undated document already in the public domain, which was taken from the devices of Varavara Rao and Gautam Navlakha, and attributed to them. The document titled “Strategy and Tactics of the Indian Revolution” was referred to in a book published six years ago. This document is also publicly available online. There is no section 161 witness statement that has been relied upon in the matter of Sudha Bharadwaj. But as a consequence of UAPA being applied, the accused cannot even get bail. Courts cannot go into the merits of the case due to the Supreme Court judgement.

The pattern followed in these arrests are all very similar: social activists, academicians, public intellectuals, who have worked in certain parts of the country are first accused of Maoist conspiracies, then with charges of misguiding Dalits, and then under the UAPA.

Sudha Bharadwaj has been in jail for two years. Varavara Rao, a Covid-19 patient, is not allowed to get out and receive proper treatment. We hear of fresh arrests ever so often. Navlakha’s case is a classic example of how the High Courts are being discouraged from doing anything. Navlakha made an application for bail before a Delhi High Court judge, but when the matter was being heard, without informing the Court, Navlakha was transferred to prison in Mumbai. When the judge enquired as to how and why this was done, there was no response from the government. Instead of explaining its position to the High Court, the Solicitor-General took the matter to the Supreme Court, and the Court simply rejected the bail application, virtually ending the proceedings before the High Court.

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