Time and again, various benches of the Supreme Court have made the Court’s position clear on bail and on the charge of sedition under Article 124A of the Indian Penal Code. On bail, there is little to improve upon Justice V R Krishna Aiyar’s pithy formulation of the constitutional position: Bail is the rule and jail, the exception. On sedition, the Supreme Court has gone back to the Constituent Assembly debates and the conscious decision of the framers of the Constitution to omit sedition as a valid ground for restricting free speech, and ruled that sedition will subsist only when complemented by proximate violence instigated by the speech in question. Thus, the Court exonerated someone who shouted Khalistan Zindabad and Raj Karega Khalsa, in the wake of Indira Gandhi’s assassination, of the charge of sedition.
Yet, time and again, these pronouncements of the Supreme Court of India are violated by lower courts. Most often by district courts, but often by the High Courts, as well. And this kind of lawlessness elicits no penalty for the errant judicial officers, not even censure. Why should this be the case?
When the Supreme Court heard comedian Munawar Faruqui’s bail application, it took the bench one minute to appreciate that due process had not been followed for his arrest and to grant him interim bail. The Court also concurred with the applicant’s contention that the allegations made in the First Information Report were vague. Yet, the Madhya Pradesh High Court had denied him bail, saying, “”But why you take undue advantage of others’ religious sentiments and emotions. What is wrong with your mindset? How can you do this for the purpose of your business?” That statement presumes the accused to be guilty of the charge against him, without the process of prosecution having found him guilty. How is this fair judicial practice?
An individual is deemed to be innocent until proven guilty. There is no ground for taking away the liberty of an innocent person. This is the basis for the position that bail should be the rule and jail, the exception.
There are conditions when grant of bail would be inappropriate: when the accused is in a position to tamper with the evidence, when there is a risk of his repeating the crime or of fleeing the country. When such conditions do not exist, bail should be automatic.
Munawar Farouqui is out of jail. But those arrested along with him are still in jail, denied bail. They could not knock on the doors of the Supreme Court. A journalist from Kerala, Siddique Kappan, was arrested en route to Hathras, where a Dalit girl had allegedly been raped and killed. Kappan had been charged under provisions of the Unlaful Activities (Prevention) Act still languishes in jail.
For their tweets on Republic Day, MP Shashi Tharoor and six journalists had been charged with sedition by the Noida police. Cases were filed against them in Delhi and Madhya Pradesh as well. The Supreme Court has stayed their arrest for the time being.
While it is welcome that some, at least, get the protection from arbitrary arrest and infringement of liberty that is their right, thanks to the intervention of the Supreme Court, the Court should ask itself if it is right that people without access to the Supreme Court should be left vulnerable to arbitrary punitive action by the executive, enabled by the lower courts. Why should the Supreme Court not express disapproval of judicial pronouncements that blatantly flout the pronouncements of the highest court of the land, and violate the Constitution’s promise of equality and non-discrimination to all citizens?
In India, the executive has great latitude in violating basic freedoms. For example, to snoop on someone’s phone conversations, all it requires is an executive order. In the US, it takes a court order for law enforcement agencies to start interception of calls made by US citizens. There is no reason why such a check should not be put on the executive in India as well.
We face a piquant situation. The government has asked Twitter to cancel the accounts of 1,200 people, including those of journalists and politicians. The social media platform has complied in the case of some 500 accounts, but has not relented in the case of those, the demand to cancel whose accounts it felt to be inconsistent with the laws of the land.
Should it be open to Twitter or any private company to interpret what is consistent or not consistent with the laws of the land? If the instruction to act against certain accounts is issued with the backing of a court order and that court order is subject to appeal in the Supreme Court, there would be less scope for arbitrariness on the executive’s part and less scope for a private company to interpret the laws of the land.
The government should stop trying to suppress the voice of dissent through arrests, raids on independent media outlets, charges of sedition or causing enmity between communities and arm-twisting of social media platforms. And the Apex Court should pursue contempt charges not against those who make open criticism of its rulings but against the lower judiciary, elements of which subvert the constitutional order by deciding on questions that come up before them as if they were unaware of, or could not care less, how the Supreme Court has ruled on those very same questions.