Saturday 5 December 2020

Supreme Court defends citizens (Sunday Guardian)


The apex court said that it was its duty to act in a situation where deprivation of liberty for a single day is a day too many.

Now that decoupling of industries and services from the Peoples Republic of China has begun, the process will accelerate, and with that will come an opportunity for India to replicate the economic success of China during the mid-1980s to around 2009. It is indeed possible for huge tranches of investment to get attracted from the PRC to India, but to ensure such a flow, among the factors needing attention are colonial constructs that make it easy for agencies of the state at practically any level to take away the freedoms and property of a citizen on grounds that ought not to stand in court but often do. This is not the fault of the courts but of successive governments that have only added on to their punitive powers rather than got rid of those that belong to the colonial past and are incompatible with the freedoms and rights which ought to be enjoyed by citizens in the world’s most populous democracy. Recently, a high-profile editor of a television channel that is admittedly less than complimentary to multiple authorities in its coverage was sent to prison and slapped with a volley of charges. Not just him but a large number of his colleagues in the channel were similarly treated. In India, much of what ought to remain within the ambit of civil jurisprudence has been shifted by politicians and officials hungry for additional power to the netherworld of criminal conduct. Actions that are innocent can be distorted in chargesheets to appear sinister. The channel in question had been less than flattering about the Mumbai police. This columnist has lived in Mumbai (then Bombay) for several years and has found much to appreciate in the Mumbai police. In common with police personnel across the country, they are underpaid and overworked. Which is why the series of actions taken against the editor and his colleagues (as well as members of his immediate family) could have been avoided. The fact that such actions were affirmed rather than overturned by the High Court in the state is a reflection of the fact that 73 years after freedom from British rule, the legal bar in India to locking up an individual and enmeshing him or her in criminal proceedings is much lower than in other major democracies. Colourable action by state agencies making use of that of that low bar to criminal detention and prosecution takes place every day and almost always go unreported. In the case of the television channel editor, his detention made headline news. For citizens unhappy about the trajectory that has been followed even after 1947 where the protection under law of individual rights and freedoms are concerned, it was welcome news that the Supreme Court of India took up the matter of the actions against the channel and its staff . The court gave its views in a manner that is as forthright as it is welcome. Should these words serve to alter the fearsome scaffolding of colonial-era laws and practices, that would be a second birth of freedom, this time at the level not of the nation but the individual.

The Supreme Court’s prima facie observations on the appeal filed by Arnab Goswami constitute a Magna Carta of citizens’ rights that merit being codified in law and procedure. Only a removal of several of the arbitrary powers (to take away liberty and rights) of officials and politicians can ensure that a climate for investment on the scale needed to make India a country of sustained double digit growth gets created. It must not be forgotten that often, a business rival has been falsely enmeshed in legal proceedings of multiple hues by well-connected rivals. In its observations, the Supreme Court opined that prima facie the ingredients for the offence of abetment to suicide (which was among the charges filed against the editor) were not established. Nor that he was, prima facie, guilty of abetting the suicide. It speaks for the ease with which charges can be brought against a citizen that such a long list was prepared against the editor and several of his colleagues. It was further stated by the court that the appellant seemed to have been made the target of an organised effort to take away his liberty and enmesh him in criminal cases, and that it was the duty of the courts to ensure that criminal law does not become a weapon for targeted harassment. The apex court said that it was its duty to act in a situation where deprivation of liberty for a single day is a day too many. These are words that need to be displayed inside every court and police station in the country. In another decision, the Supreme Court has ordered that some agencies should ensure closed circuit cameras so as to record their interrogations. Transparency is needed to prevent abuse and worse.

The judicial system across the country needs to be the protector of the people against any wrongful use of state power, and by affirming the right of all citizens to liberty, the Supreme Court provided leadership in a manner that has the potential to transform the way in which administration has long been conducted in the country. An example is the use of the draconian laws against narcotics that have for too long lingered on the stature books, and which give enormous power to the agencies policing this space. For alleged possession of a few grams of drugs that are in common recreational use in India and across the world, several in the Mumbai film industry have lately seen the inside of police stations and jail cells. This campaign may have the effect of an important element of Indian soft power—Bollywood—relocating to locations such as Mauritius. Were the Narcotics Control Bureau to jail all those guilty of the offences made out against the Bollywood celebrities it is going after, several tens of million citizens would be imprisoned. The NCB adopting a scattershot rather than a sniper rifle approach creates the danger of allowing the big fish to escape while the agency chases after minnows. The NCB needs to go after the handful of sharks who control the trade in hard drugs, for only that will ensure that this toxic trade is shut down.

This columnist knew Balasaheb Thackeray, who had a sharp intellect and a wondrous sense of humour, especially in his private depictions of those whom he was not overly fond of. Balasaheb was at heart a satirist who strayed into politics. His son Uddhav has the reputation of being a gentleman, just as the Mumbai police have a distinguished record in several ways. In Sharadchandra Govindrao Pawar, Maharashtra has a leader who is known across the world for his skill in the art of political leadership. Not just to an influential editor but to any citizen, a state government led by such personalities should walk the extra mile away from colonial-era practices. Maharashtra should move towards a path protective of rights and freedoms. How this can be done has been mapped out eloquently by the Supreme Court of India in its observations on the matter of the detention of Arnab Goswami. Not just the premier economic state but the entire country would be well served by such a change.

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