After initially suggesting that parliament is incapable of debating the issue of \u201cfreebies\u201d, Chief Justice of India (CJI) N.V. Ramana retreated a few days later in what looked like a confession about the constraints of the judiciary in a parliamentary democracy. But the country is passing through such a bleak stage that even occasional reiterations of constitutionalism are cause for celebration.<\/p>\n
Also recently, another bench of the Supreme Court, led by the CJI in-waiting U.U. Lalit, granted regular medical bail to veteran poet Varavara Rao, after a long wait of 18 months. But the supreme custodian of the civil liberties of the individual has not shown any indication to reconsider the Bhima-Koregaon case \u2013 despite the mounting evidence of its infirmities<\/a>.<\/p>\n Thus, these silver linings raise an important question about the Indian judiciary. Are the highest courts of the country trying to champion the cause of the constitution or trying to play a balancing act in the face of authoritarianism?<\/p>\n For example, last month a bench led by Justice D.Y. Chandrachud granted bail to journalist Mohammed Zubair almost unconditionally.<\/p>\n \u201cWe can\u2019t say that he won\u2019t tweet again. It is like telling a lawyer that you should not argue. How can we tell a journalist that he will not write?\u201d observed<\/a> Justice Chandrachud on July 20, while hearing a petition by the journalist challenging the cases filed against him by the Uttar Pradesh police.<\/p>\n This observation \u2013 and the tone of the judgment \u2013 provided a measure of relief to the country. The bench clearly saw through the motives of the state in repeatedly arresting the fact-checker, who had become an irritant<\/a> to the politics and the ideology of the ruling party and government.<\/p>\n But even before the ink on this bail order dried, the Lucknow bench of the Allahabad high court on August 4\u00a0denied bail<\/a> to another journalist, Siddique Kappan, who has been languishing in jail for two years. He was arrested on conspiracy charges while on his way to Hathras, to report on the rape-and-murder of a Dalit woman.\u00a0 Justice Krishan Pahal declared that Kappan \u201chad no work in Hathras\u201d and that his trip with \u201cco-accused persons who don\u2019t belong to [the] media fraternity is a crucial circumstance going against him\u201d.<\/p>\n The judge did not explain the judicial rationale behind considering a journey with alleged members of the Popular Front of India (PFI) as sufficient grounds to deny bail \u2013 especially when the PFI is not a banned organisation.<\/p>\n This logic exposes not just the glaring irrationality of the judgment but also the unseemly spectacle of a judge of a constitutional court \u2013 which is supposed to safeguard freedom of the press \u2013 scripting do\u2019s and don\u2019t\u2019s for a supposedly independent media. Similar instances have occurred with journalists from Kashmir and the Northeast.<\/p>\n Journalist Siddique Kappan. Photo: PTI<\/p>\n<\/div>\n Thus, for every Zubair or Varavara Rao who receives bail, there are many more jailed Kappans \u2013 whose cases make the euphoria around Justice Chandrachud\u2019s judgment short-lived. This fragility of the Indian justice delivery system\u00a0 stems not from the subjectivity of individual judges in interpreting facts or statutes but from institutionalised arbitrariness in applying the fundamental principles of justice, especially in cases that discomfort the ruling elite.<\/p>\n A clear example of this dissonance between principle and implementation can be seen in the contrasting manner in which one bench of the apex court upheld the patently draconian provisions of the Prevention of Money Laundering\u00a0 Act just two weeks after an earlier bench had underlined the importance of curbing the abuse of investigative process.<\/p>\n On July 11, the bench of Justices S.K. Kaul and M.M. Sundresh stressed the paramountcy of individual freedom by ruling<\/a> that bail is the rule and jail is an exception. The bench went to the extent of assuring<\/a> citizens that \u201cin a democracy, there can never be an impression that it is a police state as both are conceptually opposite to each other\u201d and asked the government to introduce a comprehensive law on bail, based on established principles. Thus, the judgment laid down the principle that individual liberty by way of arrest should be only resorted to in extraordinary conditions, when it is absolutely necessary to meet the ends of justice.<\/p>\n This was also well in tune with the concerns expressed<\/a> by Chief Justice of India N.V. Ramana in a legal services meet in Jaipur on July 16. The CJI nailed the problem by observing, \u201cIn our criminal justice system, the process is the punishment. From hasty indiscriminate arrests, to difficulty in obtaining bail, the process leading to the prolonged incarceration of undertrials needs urgent attention.\u201d Later, speaking at the Rajasthan assembly, the CJI also bemoaned the fact that the space for the opposition is diminishing and differences are met with hostility, resulting in the degeneration of democratic institutions.<\/p>\n His comments were made as the BJP-led Union government is facing allegations<\/a> of using investigating agencies like the Enforcement Directorate (ED) and the Central Bureau of Investigation (CBI) to target opposition leaders to engineer a split or silence them.<\/p>\n The data also backs up the claim that the Narendra Modi government is using the ED to deliver political results. While instances of the ED using the Foreign Exchange Management Act (FEMA) and the PMLA have increased five-fold after Modi came to power in 2014-15, its conviction rate is dismal<\/a>.<\/p>\n<\/p>\n The ED also got a boost after amendments to the PMLA made it as draconian as the Unlawful Activities (Prevention) Act (UAPA). Bail under the PMLA can be denied even after the chargesheet is filed, if the accused fails to prove the twin conditions of proving his innocence at the stage of bail itself and also \u201cprove\u201d that they are not likely to commit any crime while on bail. This inverts the principles of natural justice by shifting the burden of proving innocence onto the accused.<\/p>\n Unlike in other criminal cases, the ED is not obliged to serve the equivalent of a first information report (FIR) to the accused. Thus, the PMLA has become a classic instrument<\/a> in the hands of the ruling government which in effect is \u201cshrinking the space of the opposition\u201d and thwarting \u201cdemocratic dissent\u201d. Thus, it gives a \u201cclear impression of a police state\u201d.<\/p>\n Still, on July 27, a bench headed by\u00a0 Justice A.M. Khanwilkar upheld all the amended PMLA provisions as fundamental requirements to curb the crimes of money laundering, which according to the bench<\/a> is equal to or worse than acts of terrorism. This judgment has thus strengthened the authoritarianism of the government and made the judiciary culpable in \u201cmaking the process itself a punishment\u201d, leading to \u201chasty and indiscriminate arrests, and difficulty in obtaining bail\u201d \u2013 which were identified by the CJI as the bane of the justice delivery system in India.<\/p>\n Much has been said and written<\/a> about the disturbing consequences of the PMLA judgment and other recent judgments by benches led by Justice Khanwilkar, especially in the cases involving human rights activists like Teesta Setalvad and Himanshu Kumar. Suffice it to say that such judgments only raise serious suspicions, once again, about the institutional capacity of the Indian judiciary to safeguard the liberal values enshrined in the Indian constitution against authoritarian onslaught.<\/p>\n People hold placards during a protest against the arrest of activistTeesta Setalvad and former IPS officer R.B. Sreekumar, in New Delhi, June 27, 2022. Photo: PTI\/Kamal Kishore<\/p>\n<\/div>\n The judiciary\u2019s views on welfarism and neoliberalism<\/strong><\/p>\n This question also assumes more serious proportions when the economic rights of the people are involved.<\/p>\n While in the cases related to individual liberty, the judiciary is of late making dangerous exceptions to serve the political ideology of the ruling dispensation, in the economic domain, it is repositioning its constitutional role to privilege the interests of corporate capital over the welfare of the people.<\/p>\n The recent observation by a CJI-headed bench \u2013 dealing with a PIL asking the top court to restrain political parties from promising \u2018freebies\u2019 during the election \u2013 is one such dangerous development in that direction. The PIL was filed by a BJP advocate who was otherwise considered an irritant and admonished<\/a> by the SC many times for wasting the court\u2019s time by filing politically motivated PILs.<\/p>\n But this PIL, asking the SC to constrain the welfarist responsibilities of the state by portraying \u2018freebies\u2019 as an unethical influence on the voters \u2013 was filed following clues from Modi himself and institutions like the NITI Aayog and RBI. While the prime minister recently ignited a discussion on \u201crevdi<\/em> culture<\/a>\u201c, the NITI Aayog and RBI have advised state governments to contain their expenditure on welfare activities.<\/p>\n Thus, there was almost a consensus among the ruling elites to put a cap on the welfarist expenditure of the state and use these resources to create infrastructure to attract corporate investments. This policy itself is an outcome of the paradigm shift in development discourse which, in the neoliberal era, considers the enabling of unregulated capitalism as the only route to progress.<\/p>\n The Fiscal Responsibility and the Budget Management (FRBM) Act demands the state reduce and progressively shun all expenditure on subsidies \u2013 be it for food, fuel, fertiliser, electricity or education. This, despite the fact that these subsidies have become an important lifeline for large sections of society.<\/p>\n Fortunately, the compulsions of competitive electoral democracy and the sway of coalition governments till 2014 at the Centre did not permit successive governments from taking any decisive steps towards rigidly enforcing the FRBM Act. Even the Modi government, which considered the employment guarantee scheme \u2013 MGNREGA \u2013 a monumental failure of the welfarist policies pursued by the UPA government, could not shun<\/a> the project.<\/p>\n<\/p>\n Thus, the \u2018freebies\u2019 PIL itself seems to be a shortcut found by the Modi government to abandon all welfarist measures as part of a court directive \u2013 thus avoiding the political cost.<\/p>\n The CJI bench considered this particular PIL in all earnestness and has made path-breaking observations \u2013 overriding the judiciary\u2019s traditional conservatism in interfering with matters of public policy and economic affairs.<\/p>\n The judiciary\u2019s willingness to cross the \u2018Lakshman rekha<\/em><\/a>\u2018 on the question of welfarism is alarming if one contrasts its views on petitions challenging the policy of disinvestment and privatisation of public enterprises.<\/p>\n Several petitions have argued that the policy of privatisation was an affront to the constitutional responsibility of the state \u2013 which is obligated by the directive principles to equitable distribution of resources and avoid concentration of wealth in the hands of a few. But the SC refused to intervene, citing the constitutional division of powers between the organs of the state, where economic matters are designated as the prerogative of the executive. In the famous telecom case<\/a> (1996), the SC refused to stop the privatisation of the telecom industry by stating:<\/p>\n \u201cPrivatisation is a fundamental concept underlying the questions about the power to make economic decisions\u2026 Courts have their limitations because these issues rest with the policy makers for the nation. No direction can be given or is expected from the courts unless while implementing such policies, there is violation or infringement of any of the constitutional or statutory provision.\u201d<\/em><\/p>\n![\"\"](\"https:\/\/cdn.thewire.in\/wp-content\/uploads\/2021\/05\/10115509\/PTI07-10-2020_000117A_1200x768.jpg\")
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