Pledge alone can't preserve democracy

The Indian government, in the latest G7 summit, pledged to defend the civil society actors by preserving democratic principles and resolved to protect freedom of speech and expression. Subsequently, the Indian government and the European Union agreed to safeguard civil society actors’ freedom, independence, and diversity, including human rights defenders and journalists. However, these claims to protect seem far from ground reality in India.

The current events hold enough evidence that laws are being used constantly, and aggressively, against these very civil society actors. Laws like the Foreign Contribution (Regulation) Act (FCRA), Prevention of Money Laundering Act (PMLA) and deterrent laws such as the Unlawful Activities Prevention Act (UAPA) are now used in a more organised and selective manner against NGOs, human rights defenders and journalists.

Civil society under attack

The laws have been actively used against civil society organisations and their members. The Enforcement Directorate (ED) has conducted frequent raids on various human and civil rights activists, including Harsh Mander, and summoned Aakar Patel of Amnesty International.

It is worth noting here that there have only been 23 convictions out of 5,422 cases registered under PMLA, as per the government. At the same time, the highest number of cases reported under PMLA was in 2021-22 – 1,180 cases. Earlier, the Supreme Court, speaking through Chief Justice N V Ramana and Justices A S Bopanna and Hima Kohli, observed that money laundering laws couldn’t be used as a weapon – it would lose relevance.

The vindictive approach overarches due process of law: it makes the process a punishment. Recently, Teesta Setalvad, who was involved in ensuring justice to the victims of the Gujarat 2002 riots, was arrested a day after the SC rejected Zakia Jafri’s plea challenging the SIT’s refusal to file a case against the current prime minister.

However, it’s not only individuals under attack; other laws such as FCRA have curtailed the independence of NGOs. An amendment to FCRA in 2020 affected the philanthropic capital in India.

This has had a throttling impact on the NGOs - nearly 6,000 NGOs have lost FCRA licenses, including Oxfam India.

Journalists hounded

In the recent controversy of Alt News co-founder Mohammed Zubair, the Supreme Court, while granting him relief, noted that “the machinery of criminal justice has been relentlessly employed against the petitioner” and there’s a “vicious cycle of the criminal process where the process has itself become the punishment.”

As India’s press freedom ranking has fallen to 150 out of 180 countries, these comments from the country’s top court say a lot about the sorry state of affairs. The narrowing space for freedom of the press is also due to the lack of the state’s intent to protect journalists. The committee to protect journalists in 2021 reported that India has the highest number of journalists – four – confirmed to have been murdered in retaliation for their work. At the same time, six journalists were detained on “anti-state” charges. Constitutionally, the onus of undoing the damage done by the excessive use of laws in an arbitrary fashion lies upon the courts. But the question is, have the courts done enough?

Judicial protection

The Constitution bestows the courts with the fundamental duty of protecting the rights of the citizens. However, the judiciary’s role in preserving these rights has been questionable in the immediate past. The memories of the tragic death of Father Stan Swamy – who in his last days requested the court for a straw sipper through which he could eat, and eventually died in the hope of bail – are still fresh.

A few weeks ago, the court denied the Elgar case accused Gautam Navlakha and Sagar Gorkhe permission to use mosquito nets in jail; at the same time, many political prisoners, including Anand Teltumbde and Umar Khalid are still languishing in prison, in the hope of bail, but are served with adjournments and delays.

It is essential to realise that the constant thwarting of civil society and journalists is decaying the spirit of constitutionalism in India.

Today’s space for freedom of speech is not the Indian dream, which India dreamt of at the stroke of midnight 75 years ago. The Constitution retreats to the realisation of healthy democratic discourse. However, what is being offered now in the backdrop of systematic intolerance is not in agreement with the ideals of India.

As for political stability, India’s passage from the midnight of 1947 to the dawn of 2022 has not been smooth. But the country maintained its democratic spirit, for most part, because the Constitution was called on for succour.

The courts will have to focus on building a jurisprudence that would be looked upon
in the future as tough times require courts to be more
active.

(The writer is with National Law University, Jabalpur.)