By – Dushyant
Let the Supreme Court see I am not free”. Images and videos of a man saying these words, speaking to a media person from behind police personnel and walls with barbed wire, went viral on social media yesterday. In the videos you can see the cops forcibly pulling away his hands from the wall that he was gripping. This was 82-year-old Saifuddin Soz, speaking one day after the Government of India told the Supreme Court that Soz was never detained. The court, inverting the law and the procedure of the Habeas Corpus petition, took this claim of the executive at face value and disposed of the petition.
What sent shivers down my spine was how emblematic the videos and images really are of what India is going through. Soz has never been detained, there were no migrants on the roads, and everything has been normal in Jammu and Kashmir since August 5, 2019. Dissent is being protected and India is a functioning, thriving democracy. All these are statements, some of which the government has been saying to the top court and some that Indians have been saying to themselves despite all evidence to the contrary.
Habeas Corpus petitions are indefinitely delayed or disposed of at a bare statement from the executive which has a vested interest. Professors, lawyers and activists can be kept in prison for long periods, including in the middle of a pandemic. Cases involving constitutional questions which strike at the heart of the democracy – such as the legality of electoral bonds – are kept in cold storage indefinitely. Criticism of the court, or of SC judges, invites contempt or removal from cases as petitioner (Harsh Mander). Blatant lies in court from the government of the day – whether on Aadhaar or migrants or Rafale or any issue – can happen without any consequences whatsoever. And a chief justice sits as judge in his own cause, be shielded from ordinary enquiry after serious allegations of sexual harassment.
For several years now, many have spoken about how the apex court has ‘failed to protect’ the guarantees in the Constitution. Some critics have used the phrase ‘looking away’ and ‘executive-minded court’ to describe the unconstitutional actions of the top court. All the perceived wrongs have been framed as a surprise and a ‘disappointment’. Every instance of the court upholding the Constitution has been disproportionately celebrated. Criticising the court and its judges is of course risky, to put it mildly.
Consequences can range from contempt proceedings involving imprisonment and fine to facing anger and displeasure of the judges – riskier, if you’re a lawyer or a litigant. The semantics of the law on contempt are irrelevant. Not only is the law oppressively vague but the Supreme Court is all powerful. Hell’s fury is a whimper in comparison.
There arise moments in the history of a nation and an institution when not saying the plain truth is to be guilty of egregious cowardice, intellectual dishonesty and betrayal of whatever it is that one owes to the institution in question. The powers conferred by the Constitution to those entrusted with discharging its functions are being abused, both by omission and commission, to defeat the guarantees in the Constitution. With an executive on the rampage, Parliament in malicious suspension, a culture of fear around criticism of the top court, there is little to stop this. If the Constitution could get up and do it, it would have sued the top court for contempt.
I have no doubt in my mind that Indians will eventually succeed in protecting India – its ideas, its institutions and its freedoms. Serious repair will, however, require all citizens, not just those in the profession of law to first acknowledge the reality that the institution is being abused and second to begin a conversation around how to prevent this abuse. Changing the method of judicial appointments may only be one step. Educating everyone about their relationship with the judiciary and the accountability that courts, even the top court, owe to citizens is another. Citizens will have to come forward, regardless of all kinds of walls full of barb wires and demand that the Supreme Court sees that many who are being called free are not free.
Before that happens, many of us who believe we are free will have to examine how durable are the freedoms we take for granted every day. If this can happen not only to crores in Jammu and Kashmir, to reputed professors, to someone as privileged as Soz, a former union minister across governments, to college students, to pregnant activists, it can happen to you and, in all likelihood, a cameraman will not come knocking at your door. Pastor Martin Niemoller warned us ages ago, and Anand Teltumde said it recently: “I earnestly hope that you will speak out before your turn comes.”