On Tuesday, Extra Sessions Judge Kamini Lau of Delhi’s Tis Hazari Court made a moving statement defending, among other things, the right to protest, in the context of how parliament has been functioning in recent times. She heard the request for release on bail lodged by the chief of the army of Bhim, Chandrashekhar Azad.
Judge Lau was scathing. She lambasted the Delhi police for failing to produce evidence to support their claim that Azad had engaged in violence during a rally in Delhi against the Constitution Amendment Act (CAA), 2019, while claiming opposing his request for release on bail. But that was just to start. She stressed that it was her “constitutional right to demonstrate”, especially when inside “Parliament things that should have been said were not said”. That was the reason, the judge said “why are people on the streets”. “We have the right to express our opinions, but we cannot destroy our country.”
Delhi police were behaving, she said, as if the Jama Masjid area was in Pakistan, when her lawyer opposed the bail, saying Azad had organized a dharna in Jama Masjid. “What’s wrong with going to Jama Masjid?” What is wrong with dharna? It is a constitutional right to protest. Where is the violence? Have you read the Constitution? It was a strong thing.
On the second and final day of the hearing, the judge had more to say in the same vein. She wrote in her ordinance: ââ¦ the fundamental right to peaceful protest is guaranteed by the Constitution, which cannot be restricted by the stateâ¦ While exercising our right to demonstrate peacefully, it is our duty to ensure that ‘no corresponding rights of others are infringed. . The ordinance also stated: âThe violation or destruction of property is completely unacceptable and for any kind of damage to private or public property during the demonstration, it is the organizers who would be responsible for such damage and required to compensate said loss. âBut the ordinance noted that no assessment had been made of the damage and that there was no direct evidence to link Azad to damage to public property.
When the Delhi police attorney read six tweets, which he considered incriminating, she only commented on two. As for one of them, who said Prime Minister Narendra Modi “brings the police when he’s scared,” she said, Azad “shouldn’t disrespect the prime minister like that “. Regarding another, who said, those “who incite violence are RSS (Rashtriya Swayamsevak Sangh)”, the judge said: “Why name the RSS and other organizations? Talking about oneself. Talking about others can inspire people.
Despite his comments overwhelmingly in favor of Azad and against the police, the judge imposed bail conditions, which are themselves draconian, pipe dream and prima facie unconstitutional. She granted Azad bail, stipulating that he should not commit “similar” offenses, after rejecting the prosecution’s claim that an offense had been committed; and should not visit Delhi until the end of the Assembly elections, except for treatment. It was also stipulated that he was to report to the police station at Fatehpur Police Station in his home district of Saharanpur.
Noteworthy in all of this is the complete disconnect between the judge’s submissions and the bail order. It would be interesting, albeit unsuccessful, to speculate on what could have happened in 24 hours to cause such an about-face.
Among Justice Lau’s observations were the Supreme Court’s orders and observations on Internet restrictions in Kashmir and the indiscriminate imposition of Section 144 issued on January 10, 2020. Inspiring the optimism of liberal constitutionalists, the court observed that Internet access was constitutionally protected on a number of grounds and called on the government to immediately review the restrictions. It had also held that the imposition of section 144 could only be justified if the anticipated danger was of an urgent nature and could not be used to âsuppress the legitimate expression of opinions or grievances or the exercise of any democratic right â.
While Judge Tis Hazari has withdrawn the sting of her own submissions with a contradictory bail order, the Supreme Court’s order has been marred by delays. It was not the judiciary’s fault, but the government had taken great care to ensure that the hearing of the case was postponed long enough under the previous Soft Chief Justice to keep these submissions and orders in. the arena of theory.
What the government had set out to accomplish in Kashmir by forcing constitutional changes indefensible through intimidation and occupation, had been accomplished. The case was heard more than five months after the Kashmir lockdown.
These two instances of legal action bear witness to a creeping deinstitutionalization which is eroding the foundations of liberal democracy in India. Not so long ago, it was believed that the Central Bureau of Investigation and other state investigative bodies could be bribed; statutory bodies or positions like those of the central commissioner for vigilance, the comptroller and auditor general, and even the electoral commission could also be subverted because in the final analysis the central government held the power to make appointments in all of these cases and this power could be abused to ensure partisan compliance. But many citizens believed that the judiciary would remain the last redoubt of constitutional governance, despite the years of emergency.
It is not just these two cases. Just as the Kashmir hearings have been postponed beyond reason, giving the government the space to present the nation with an irrefutable fait accompli, the hearing of the enormous amount of petitions relating to the CAA and the National Register of Citizens (NRC) is delayed. . The first group of motions was admitted on December 18, 2019, but the first hearing was posted for January 22, 2020. A chamber of the Supreme Court had declared on January 13, 2020 that the hearing of the CAA and Article 370 cases should wait. , because the Sabarimala affair, be older, would have priority.
The CAA case is of fundamental importance because the Act alters the character of the Indian state and is prima facie unconstitutional. The article 370 case is also fundamental. There is no question here of making a laundry list on the basis of time precedence.
Likewise, on December 16, 2019, Chief Justice Sharad A Bobde refused to urgently hear a petition relating to police excesses at Jamia Millia Islamia and Aligarh Muslim University, citing reasons it seems fragile, even bizarre. He said, âWe are not saying who is responsible, the police or the students. We say the riots must stop. We have enough experience as judges to know how riots start and what the rights of protesters are. We cannot decide in this atmosphere. All these riots must end. What is this vandalism of public property? We will get acquainted in a cool state of mind.
One would have thought it was a judgment in itself, for the whole point of the Jamia case was that the students who suffered most of the blatant police action had claimed, and still claim, that they had neither “rioted” nor “vandalized”. public property. The people who had done this were the police, which is an established fact, and agents provocative at the instigation of either the government or the Bharatiya Janata Party (BJP), an issue that needed to be addressed. This was precisely the reason why an approach had been made to the highest court.
The independence of the judiciary is also threatened, we are witnessing the establishment of a police state, on the way to becoming a full-fledged fascist regime. We have seen this with the government’s response to peaceful protests over the past month or so. We have seen this with the summary arrests and the incarceration of people who dissent from the political ideology of the ruling party, as in the Bhima-Koregaon / Elgar Parishad affair. And we have seen that in the repeated – or abusive – use of the Sedition Act (Section 124A of the Indian Penal Code), a colonial-era provision used by the British as an instrument of repression against colonized subjects, which should be repealed by a liberal constitutional state dealing with rights-holder citizens.
The erosion of institutions has allowed the state to use the full panoply of its powers, including the âlegitimate monopolyâ of violence and the possession of the instruments to commit it, in a totally illegitimate manner. Judicial declarations such as those on “riots” and “vandalism”, which we have just encountered, create the crucial conditions of impunity allowing state violence and repression, especially since they are rarely counterbalanced by violence. judicial warning of a regime guilty of abuse of power.
But we must remember that fascism is the political expression of a social disease. The question is to know what happened in Indian society that allowed the current regime to squeeze liberal democracy into an authoritarian groove. The answers are obviously too complex to be dealt with in this essay, but we must begin by noting that there is a particular state-society dialectic at work. Indian society is fractured along many dividing lines. The division of classes covers several fundamental fractures: along the lines of religion, caste, ethnicity and language. These divisions are still at play and instead of being sealed off by capitalism and globalization, they have in fact been exacerbated by them in several ways.
The state, with its immense powers, has a role to play in shaping social formation. What we have seen over the past five years or so is the spectacle of a regime stoking social divisions, sometimes insidiously, often blatantly, to create a climate of chauvinistic hysteria and muscular majoritarianism. The latter is encouraged by the party and the instigation by the regime of the majority crowds, which undertake vigilant actions against minorities and the marginalized, in particular the Dalits. The poor of all persuasions are also neglected. These, in turn, fuel the majority and exclusivist designs of the ruling party and the regime. And it is this dialectic that creates the conditions for fascism. Even though only around 25% of people voted for the increasingly fascist and still predominantly communal BJP.
Fortunately, âordinaryâ citizens are voting with their feet, their time and their energies – at considerable personal cost – to oppose this regime and its designs. It is to be hoped that the 62% of citizens who did not vote for majoritarianism, fascism and a police state win the war that is being waged.
Suhit K Sen is a freelance researcher and journalist. Opinions are personal.