Act I: Might
Mr Kiren Rijiju, Honourable Minister of Law and Justice, uses every opportunity to emphasise that he and his government do not interfere — and have never interfered — with the independence of the judiciary. As a citizen and a practicing advocate, I would like to believe him. I was happy to hear Mr Rijiju re-state the position of the government in a recent interaction at the India Today Conclave.
Midway, he delivered a thunderbolt. He said, and I shall quote his words: “I feel this is the most important topic for me, for the nation. …There is a calibrated effort to undermine Indian judiciary. That is why they say, day in and day out, they are saying that government is trying to take over Indian judiciary. …In a way, it is a sinister design…The anti-India forces in India and outside India, they use same language… The same eco-system is working inside India and outside India also… We will not allow this tukde tukde gang to destroy India’s integrity and our sovereignty…
“Recently, there was one seminar in Delhi. Some retired Supreme Court judges, some senior lawyers, some people were there. The topic of the seminar was ‘Accountability in Judges Appointment’. But the discussion whole day was on ‘how government is taking over the Indian judiciary’… it is a few of the retired judges, few may be three or four, few of those activists, part of the anti-India gang, these people are trying to make Indian judiciary play the role of Opposition party…
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“Actions will be taken, actions are being taken as per law, but if I say that I will take action…The agencies will take action as per the provisions of the law. Nobody will escape, don’t worry, nobody will escape. Those who work against the country will have to pay a price for that…”
It was an unambiguous statement. What was on display was the might of the State through its Law Minister, no less. The mighty State was saying that if the government comes to the conclusion, subjectively, that there is a tukde tukde gang or that any person is part of the anti-India gang, be forewarned that action will be taken against any one who speaks or plays the role of the Opposition. We know who the ‘agencies’ are. We know what action they will take. We know what price the person will pay. We also know that the process is the punishment.
Many have criticised the statement of the Honourable Minister of Law and Justice and its chilling effect on free speech. In my view, it was a display of the raw power of the State and provides sufficient evidence that democracy is in danger.
Act II: Plight
Move over to another organ of the State: the judiciary. At the apex of the judiciary sits the Supreme Court of India, sometimes described as the most powerful court in the world. On March 21, 2023, a three-judge Bench delivered a judgement in the case of Satender Kumar Antil vs Central Bureau of Investigation. Noting its earlier judgement in the same case passed in July 2022 on the issue of ‘bail’, the Court said, and I shall quote its words:
“Counsels have produced before us a bunch of orders passed in breach of the judgement in the case of Satender Kumar Antil vs CBI & Anr only as samples to show how at the ground level, despite almost 10 months passing, there are a number of aberrations…This is something which cannot be countenanced and, in our view, it is the duty of the High Courts to ensure that the subordinate judiciary under their supervision follows the law of the land. If such orders are being passed by some Magistrates, it may even require judicial work to be withdrawn and those Magistrates to be sent to the judicial academies for upgradation of their skills for some time.
“Another aspect which is sought to be pointed out… is that not only is there a duty of the Court but also of the public prosecutors to plead correct legal position before the Court as officers of the Court.”
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Just as ‘free speech’ is guaranteed under Article 19(1)(a) of the Constitution of India, ‘liberty’ is guaranteed under Articles 19 and 21. Both are basic, unalterable features of a democracy. The anguish expressed by the Supreme Court illustrates the plight of the law caught in the middle between overbearing investigating agencies and an indulgent subordinate judiciary (with notable exceptions).
Act III: Might & plight
On March 23, 2023 Mr Rahul Gandhi was convicted by a Magistrate’s Court on a complaint (by a BJP functionary) of the offence of defamation under Sections 499 and 500, IPC for certain words uttered during a political campaign/interview. He was convicted and sentenced to 2 years’ imprisonment. The lawyers representing Mr Gandhi have found fault with the judgement of the learned Magistrate on grounds of lack of jurisdiction, procedural errors and manifest injustice. They also viewed the punishment of 2 years’ imprisonment (the maximum under the law) as unusually harsh. Robust political discourse is the essence of democracy. On deeper analysis, it will be evident that the law was set in motion to silence a leading voice of the democratic Opposition. Noisy appreciation of the ‘might’ of the law must be tempered by calm introspection on the ‘plight’ of democratic voices.