“What is wrong with dharna? What is wrong with protesting? It is one’s constitutional right to protest. Who says you cannot protest? Have you read the constitution?”
These were the words of Judge Kamini Lau of Delhi’s Tis Hazari court while reprimanding the public prosecutor during the bail hearing of Bhim Army chief Chandra Shekhar Azad.
This was one of those rare headlines these days that helped restore faith in at least one pillar of our democracy. Dr. Lau’s statement was one that reeked of democratic fervour and constitutional spirit.
But it is the operative part of her order that elicits disappointment. Bail was set at Rs 25,000 with the condition that Azad leave Delhi for four weeks and refrain from visiting Shaheen Bagh.
Of course, the intent of the decision must have been in the larger interest of public order, keeping in mind the election that is due in Delhi in a few weeks. But Azad’s example is only a case in point of a much larger and problematic narrative of half-justice being legitimised in the country.
In the month of December, our nation’s conscience was shaken as videos and reports of policemen entering the library and assaulting students of Jamia Milia Islamia surfaced online. The Delhi Police alleged violence on the part of the students – which, according to them, justified their action. Many of the photos that were posted even suggest that some of the people assaulting students weren’t even police personnel.
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It was one such case where it would have been laudatory if the Supreme Court had taken suo moto cognizance to look into the issue. That did not happen. On the contrary, when students took their prayers to the apex court, they were asked to stop their protests before the court hears the case.
“Just because they happen to be students, it doesn’t mean they can take law and order in their hands, this has to be decided when things cool down. This is not the frame of mind when we can decide anything. Let the rioting stop,” the judge said. What, perhaps, the honourable Chief Justice failed to consider is the possibility that the violence was not being perpetrated by the students and that they themselves might have been the victims of it.
In any case, what was being demanded of the students was to give up their right to assemble peaceably without arms under Article 19(1)(b) of the constitution in order to restore their right to life and liberty against the arbitrary executive acts of the state under Article 21.
Take the case of Azad again, who, despite having his right of assembly under 19(1)(b) held up in the most eloquent fashion, had to ‘trade’ it with his right to move freely throughout the territory of India under article 19(1)(d).
What we are observing is an emerging pattern where we have our rights guaranteed to us, but with a small asterisk of terms and conditions attached to it.
Subject to the reasonable restrictions put on them by the text of the constitution itself, fundamental rights guaranteed to us are unconditional and non-negotiable. The Supreme Court has made it very clear that these rights of an individual cannot be waived, even by the individual himself (Basheshar Nath v. Commissioner of Income Tax, 1959).
Lord Hewart had once observed,
“Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
But what we are observing today is just the opposite and indubitably bizarre: cases where justice is seen to be done but not actually done. The state takes away a citizen’s right with no remorse. The citizen pleads the state to have it restored. The benign state, in all its largesse, gives him back that right, but takes another right instead. The net effect? The citizen is still deprived of one or more of their rights.
A large section of the civil society already behaves as if the rights of free speech and assembly, if given to us, are mercies of the present day government, and the ones who use it to oppose the same are hardened criminals. What we must be vary of is the possibility of such notions permeating our judiciary. The wounds of the Emergency are still fresh on the minds of many Indians, where Chief Justice A.N. Ray went so far as to say:
“Liberty is the gift of the law and by law can it be taken away.”
This line of thinking today lies much criticised in our public spaces and has been vehemently rejected. But the idea that our rights are negotiable is slowly seeping through. It surfaced again when the Honourable Chief Justice called upon for the ‘violence to be stopped’ ere he could heed the prayers of the litigants against the Citizenship (Amendment) Act, a law which many legal scholars and even the UN has termed ‘fundamentally discriminatory’.
While we fight for the causes of social justice and freedom from discrimination, what the citizenry should do is remind the state that our fundamental rights are not up for bargain.
Abhineet Maurya is a law aspirant and is currently preparing for the CLAT exam. He reads in his free time and likes watching TV shows/anime. You can reach him at firstname.lastname@example.org
Featured image credit: Bhim army chief Chandra Shekhar Azad at Jama Masjid in New Delhi on January 17, 2020/PTI/Ravi Choudhary