A recent newspaper editorial with the headline “Thank You” on the Disha Ravi judgment ended with the subtle punchline “One hopes it will be.” Thanking the judge, it was a fervent hope that all judges will follow Justice Dharmendra Rana’s thoughtful enunciation of the principles of natural justice enshrined in our Constitution whilst making judicial pronouncements.
That such a reiteration of basics is necessary at all 75 years after Independence – and when we have had the benefit of a robust Constitution and landmark judicial pronouncements over time – is a scathing, though subtle, indictment of the times we live in. It’s not restricted to the judiciary but to most organs of the executive including the police, the investigative bodies, revenue authorities etc.
The world was witness to the damage Trump did to the very idea of the US in his four year term. This culminated in the Washington insurrection of January 6. Prior to that, most of his actions were technically legal but went against the spirit of the law. He was ultimately stopped from wreaking havoc, by functionaries in public roles who refused to toe his line and liberally interpret the powers of the President. In other words, they stood up to him and did what the law required them to do.
This included Vice-president Mike Pence, members of his cabinet, Georgia’s secretary of state, many civil servants, and even some appointed officials. The courts have repeatedly struck down his lawsuits that were intended to change the electoral outcome. If Trump was finally stopped from doing more damage than he did, it was largely due to the resilience and inner strength of American institutions and, more importantly, the people who staffed them. This included the media, the justice department, the courts, the larger federation of civil society groups, universities, scientific institutions and the defence establishment.
The core issue we’re facing in India is that those in public offices are progressively unwilling to do what is right and in line with the substantive intent of the constitutional mandates. To say that the police and other enforcement agencies follow this with boring regularity is stating the obvious. Regretfully, it is fast percolating to many other organs of the governance system, where different functionaries take a position which optically aligns with their own perception of the current thinking of the powers that be, and not the mandated path of the law and, more importantly, its spirit.
And the general public, apart from those branded as “activists” or “andolanjeevis”, don’t seem to care. We have all witnessed the shameful silence of icons on issues affecting the same society which has venerated them – as wide ranging as the CAA, the love jihad insanity in UP and other states, concentrated attacks on journalists and use of sedition law on patriotic Indians who have exercised their right to peacefully protest.
The Indian middle class too exhibits a remarkable indifference to the common good, an apathy in upholding the fundamental principles of democracy and a vacuousness in its public spiritedness. This numbed social conscience – due to self-interest, fear or greed – and consequent erosion of national character is the key contributor to our situation today. And most alarmingly, this trait of selfish disinterest, based on the ‘free rider’ theory, and grovelling to authority is evident all across society – from the bureaucracy, to most corporates, academia and even petty resident welfare associations.
That such institutional attitudes will erode democracy is a given. Contrary to the popular narrative that the election process is the ultimate test of a functioning democracy, it must be reiterated that definitive policy and administrative actions to uphold civil liberties in between elections is an indispensable part of the definition. India losing its status as a “free” nation in the latest Freedom House report and being classified as an “electoral autocracy” by the Sweden-based V-Dem Institute need to be reflected upon in this context. Loss of freedom is a sobering phenomenon – and must make us introspect on what we hold dear above all.
Former SC Justice Deepak Gupta indicated recently that Gautam Buddha, Guru Nanak and Mahatma Gandhi would all have been branded in the same way Disha Ravi was, for having a point of view different from the dominant thinking of the time. So would Swami Vivekananda, Raja Rammohan Roy and countless others who influenced fundamental societal reforms in India when it wasn’t an independent nation.
It’s precisely this which makes the nation beholden to Justice Rana for his pronouncements in the Disha Ravi case. We are seeing how even first principles of justice are being perversely distorted and abused by the authorities, mainly police, with the fear of courts and judges waning fast. The case of the young comedian, Munawar Faruqui, who spent five weeks in jail – on the newly coined doctrine of “presumptive proof” – for a speech he ‘may’ have given, but did not in actual practice.
He was jailed because all judges, from all the lower courts of our judicial system right upto the HC, found the police action to be justified in jailing Faruqui. I shudder at the thought of the consequences if that lone judge in the SC too agreed with all his junior colleagues manning the entire judicial hierarchy.
Kofi Annan once said: “We cannot build freedom on the foundations of injustice.” As had Martin Luther King: “Injustice anywhere is a threat to justice everywhere.” And Benjamin Franklin: “Justice will not be served until those who are unaffected are as outraged as those who are.” History repeats itself as tragedy if we don’t learn from it.
Views expressed above are the author’s own.
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