Excellent judgements, but do police care?

Draconian laws, motivated arrests

The Delhi High Court’s order declaring protests, without resorting to arms or weapons, a fundamental right and not terrorism is most welcome, enlightened and timely, and becoming of the twenty-first century that we live in. The words of wisdom contained in each of the three separate bail orders are telling, notwithstanding the specific situation of any case. The court has quite rightly called the ‘mind-set’ of booking ordinary and unarmed protesters under UAPA as being perilous to the very idea of democracy. Its remark that a State agency “must not countenance crying wolf” is most telling.

Booking of cases by the police under UAPA, TADA (despite its abolition), POTA, or the Sedition Law (Section 124A of the IPC) or other related laws and provisions have been on the upswing in recent years. People have been charged with sedition for liking a Facebook post, cheering a rival cricket team (Pakistani), spoofing politicians in cartoons, stand-up comedy, criticising a yoga guru, or for not standing up in the cinema hall for the national anthem, and such other actions. The very idea of nationalism or patriotism is placed at stake by the dreaded Sedition Law, when merely praising neighbouring Pakistanis as friendly people becomes a serious offence. The Sedition Law is being applied today in independent India against students, intellectuals, journalists and activists just as it was intended by the British rulers when the law was made in the 19th century and applied against students, intellectuals, journalists, activists or even ordinary folks criticising the then colonial government.

There have been any number of judgements in the High Courts and the Supreme Court cautioning against the indiscriminate application of such laws by various governments and their agencies. However, the governments have found it expedient to continue using these laws, regardless, to serve their purposes. This is probably because given the pace at which our justice system grinds, the tardy judiciary processes and the long periods of incarceration without bail are in themselves often worse than the punishments. In some cases, the periods of such captivity run longer than the maximum punishment for the supposed crimes themselves.

While this may be an excellent judgement (appealed by the State, of course!), truth is, it may be too early to start rejoicing. For one, neither as citizens, nor as governments are we a very law-abiding people. One can think of many instances where even Supreme Court directives and decisions are defied by various governments without attracting contempt of court, often leaving the Supreme Court a helpless spectator.

The reasons for such cavalier treatment of court orders by governments, bureaucrats and police officials are easy to fathom. Practically any case in our courts outlives the term-in-office of the culpable bureaucrats, policemen or other functionaries. Given the delays in judicial decisions, when courts have decades worth of backlog, contempt proceedings can hardly be effective in calling the guilty to account. Most senior functionaries have official indemnity and protection from arrest for any offence, leave alone a milder ‘contempt of court’ charge. The functionaries are long retired, and in some cases dead, before the judgement is delivered.

At the same time, upholding the majesty of law demands that the laws are effectively, and if necessary, forcefully, implemented. True, the Delhi High Court may have called the arrests of ordinary protesters under the draconian UAPA as violative of one’s constitutional right to protest. But in India, that still does not mean that you can safely draw your cartoons, indulge in stand-up comedy spoofing political or politically-connected bigwigs, or like or forward sundry posts on social media, especially if you are a student or an intellectual from a particular set of universities – such as JNU or Jamia Milia -- or an intellectual against the slant of the ruling dispensation.

Many participants in such public protests or social media postings are publicly vilified, with selective leaks of their cases in the public domain. Relevant in this context is the Karnataka High Court’s recent direction to the police not to leak information to the media about an investigation even while the case is live. This, once again, leads us to the same argument all over again: The High Court judgement is fine, but will the police actually follow the directive?

That begs the obvious question: How do we get such judgements to lead to systemic correction? How do we ensure that court judgments are followed to the letter and spirit by those concerned?

The Supreme Court has frequently drawn attention to the need for urgent judicial reforms. Perhaps judicial reform, like charity, must begin at home. For starters, the Supreme Court (and even the High Courts) could carve out a separate administrative cell from their registrar’s office, tasked with bringing to book those functionaries who violate the court’s directives. Their entire focus must be to prevent any violation of their directives and orders. Every such violation should be recognised as contempt of court to begin with, under the quasi-judicial administrative process, rather than a judicial process.

This quasi-judicial process should be straight-forward. For example, who was the police officer and his superior officer directly responsible for flouting a court directive, or say, arresting someone, in violation of the court directive under any of the draconian laws? Such functionaries should be indefinitely suspended with half pay or entirely without pay under the court order, until they can prove their innocence in the normal course of the judicial process.

This punishment would be exactly proportionate to what these functionaries do, for instance, to those they wrongfully arrest— subjecting them to the torture of the judicial process. Under this scenario, any bureaucrat or policeman would think twice before carrying out such wrongful arrests blindly, at the behest of their political or other masters. Without such bite, many of the pronouncements of the higher courts sadly remain mere expressions of good intention and wisdom.

(The writer is an academic and author of several books)