The other day, speaking at a farewell function of Justice Ashok Bhusan, the CJI, Justice N. V. Ramana, expressed his view that judges while giving judgments, must focus on law, precedents, and facts of a case on one hand and the other, the human aspect. It is a view that reminds us that justice, without a touch of humanity, is a soulless entity, a cold and lifeless body. At a time when the State is becoming more and more inhuman, the laws enacted are turning out to be more draconian by the day, and the poor and the vulnerable becoming more and more vulnerable and helpless. Such thoughts from a person like the CJI gives our sinking hearts a flicker of hope that the right to life and dignity of the human body, the right to justice and equality before the law, someday, will lighten the dark caprices of our collective life that are becoming bigger and bigger under the spreading shadow of religious bigotry, communal hatred, caste prejudices and politics of othering. This is still a dream, but a dream that we, the people of India, can abandon only at a colossal cost.
Meanwhile, Fr. Stan Swamy a detainee for eight long months died without trial, on charges that were never proved in a court of law. Many others are languishing in jails all over the country, detained under the same set of laws, on mere suspicion of being terrorists or having associations with banned outfits. In our state, Assam, a social activist had to spend more than 17 months on similar charges until he won an election to the state assembly from the confines of his prison cell and the Court found no evidence in the charges brought against him. Others may not be that fortunate. People are put to jail for their call to people to come out and protest against a law that provides for the selective grant of citizenship to foreigners belonging to certain countries and certain faiths that goes against the secular principles of our constitution and also the Supreme Court’ pronouncements in the case of S. R. Bommai vs Union of India, 1994.
Not so long ago, there was a buzz against draconian laws like AFSPA, MISA, PTA, and some other similar Acts. The courts also, at various times, set aside some such questionable preventive laws passed by the different regimes, primarily to gag the dissenting voices, thereby strengthening the democratic foundation of the nascent Republic. However, as time passed, the executive brought similar laws in the name of national security and territorial integrity of the country and the judiciary too, got influenced by such rhetoric over time. The reality today is, that all the venerable institutions, responsible to stand up for people's right to life and human dignity, have either averted their eyes from what is happening under their very noses or have become willing accomplices of such acts!! This is the tragedy of our collective responsibility.
Another worrying development that has taken place in recent times, is the increasing incidence of using the law enforcement agencies to silence the opposition as well detractors of the regime. Along with the draconian UAP Act, the use of these agencies and the civil and armed police of the states to silence the dissenting voices, have brought back memories of the dark days of the Emergency of the mid-seventies of the last century. The judgement passed by the Supreme Court in the case of the National Investigation Agency vs Zahoor Ahmad Shah Watali, 2019, it has now been stipulated that until all the evidence brought by the State against an arrestee under UAPA are rejected as inadmissible or disproved during trial, the accused will remain in custody. The same judgement also, inter-alia, stipulated that no law points could be discussed in detail during the hearing of a bail petition of an accused under this Act, which effectively barred even the High Courts, which have inherent jurisdiction to hear and decide constitutional and legal points, from passing favourable orders on bail applications. The greatest irony of the whole matter was that the impugned order was pronounced in a case dealing with a bail application only. This has brought our democratic polity itself to a shaky foundation as the inviolable and constitutionally and legally guaranteed rights to life and human dignity have now got unquestioningly compromised.
Another matter of concern that has all these years and more so now, has worried the believers in unfettered rights to life and human dignity, is the active encouragement given by the political executives to the various police forces to shoot at alleged criminals if they try to escape from custody while being taken to reconstruct a crime scene. No question is asked by the executives as to how a single accused can escape from the custody of a group of armed and well-trained police officers, that too when the law permits to handcuff such persons while taking them to reconstruct a crime scene. The doctrine of use of minimum force, under specific and well laid out circumstances, is merrily given a go by the very institution that is constitutionally and legally bound to uphold the right to life and human dignity under all circumstances.
Not so long ago, the buzzword in our accusatorial criminal justice system was bail, not jail! Sadly, those days are gone long ago. As the Executives found themselves in a sticky wicket, not being able to fulfill the expectations of the burgeoning millions, stop corruption in public life and create opportunities for livelihood for crores of people living below the poverty line in our squalid cities and arid villages, took to more and more stringent preventive laws to gag the protesting voices of the people. The top administrators' failure to formulate coherent policies and ensuring transparency in the implementation of people-oriented schemes, made them intolerant of criticism and dissent. Hence, this rhetoric of national security, cow protection, population control through coercion, religious conversion, fear of the others, the supremacy of the majoritarian doctrines, and whatnot.
But people cannot be fooled all the time. The institutions are as strong as the men heading them. Here the judiciary must show the way. The media too must play their roles faithfully and with conviction. The darkness that has engulfed us cannot be allowed to make us lose our way completely. Else, the whole edifice might collapse, and we, the Nation, cannot afford it.
(The writer is a retired IPS officer and former Director-General, Civil Defence & Home Guards, Assam. Views expressed are personal).