In a Bad Week for Civil Liberties, the Courts Haven’t Stepped Up

What connects Khalistan, Bhima Koregaon, Aligarh Muslim University, and the Pulwama terror attack?

Three students were convicted for possessing pro-Khalistani literature and sharing Facebook posts, while the Bhima Koregaon activists continue to languish in jail.

(Photo: Aroop Mishra/The Quint)

What happens if one day, you’re arrested on trumped-up charges, and despite there being no evidence against you, the police refuse to believe your pleas of innocence?

What happens if you don’t get bail even when you’re supposed to, and when your long-delayed trial finally takes place, the judge convicts you despite the law saying you should be acquitted?

Most of us don’t like to think about such possibilities because they’re uncomfortable and it’s far nicer to just stick your head in the sand and assume this can never happen to us. Even if we do, we like to think that things will eventually be okay, that justice and fairness will prevail, that Bob Marley was right.

Central to do that is an inherent faith in the institutions meant to ensure justice is done. Surely the media will uncover the truth, and then the public will stand up for us. Surely the high courts or the Supreme Court will take a dim view of this injustice, and will swoop in to fix everything.

But what if they don’t? What if the media decides to bay for your blood even without any evidence of your guilt? What if even the higher judiciary fails to intervene, even when the authorities are clearly being unfair and malicious towards you?

A Bad Week for Civil Liberties

This is not just a hypothetical, it’s something we’re seeing happen before our very eyes. In just the past week, we’ve seen a series of developments that don’t bode well for civil liberties.

• Three Sikh men were convicted by a trial court for “waging war against India,” on the sole basis that they had some pro-Khalistani books and pamphlets in their possession, and had shared some pro-Khalistani content on Facebook (see details here by The Times of India).
• The Supreme Court allowed Maharashtra authorities to get away with keeping activists arrested on dubious Naxalism charges in jail, despite having played fast and loose with the rules.
• The police in Aligarh immediately agreed to register a case of sedition against students at Aligarh Muslim University at the behest of a BJP youth leader.
• In the aftermath of the Pulwama attack, several news channels and thousands upon thousands of regular citizens on social media, have used the incident to go after “seculars” and “apologists” – basically anyone who has ever questioned the way the armed forces operate in Kashmir, or suggested violence isn’t the solution. Action is being urged against them and Kashmiris, whether in terms of violence, or stripping them of rights and privileges.

How the Courts Got Things Wrong

The trial court in the Khalistan case ignored years of unambiguous Supreme Court jurisprudence, which has held that mere possession of literature, or advocacy, or even public sloganeering, cannot be a criminal offence if there is no incitement to imminent violence. If the judge had followed the letter of the law, he would have thrown the case out before the trial itself. Instead, he passed a judgment that will no doubt please the anti-anti-nationals, but which is destined to be overturned on appeal in the high court or the Supreme Court – after wasting public money, and precious years of these men’s lives.

The Supreme Court has had a few opportunities to intervene in the malevolent campaign to target activists, lawyers and academics for alleged links to the Bhima Koregaon violence and Maoists. Now there is certainly an argument to be made that the Supreme Court should not be involving itself in ongoing investigations, given the huge number of pending cases before it, that it should not take up regular cases which can be heard by other courts.

But as Justice DY Chandrachud pointed out in his dissenting opinion back in September 2018, this isn’t just a regular case, this is a case where the right to dissent is under threat.

The way in which the Pune police have been leaking supposed evidence to the media and using extra-legal terms like “Urban Naxals” to refer to them, is an indication that the investigation is not being conducted fairly. This bad faith has also been manifest in the way the Pune court has conducted hearings on Sundays, and denied the accused access to materials needed for their defence – something which was revealed during the most recent hearings.

It’s one thing for the court to not want to pass a value judgment on whether or not the allegations are true. But in such circumstances, given the draconian nature of the laws like the UAPA that are at play, it has to insist that every relevant procedure is strictly followed.

Doing so ensures that the scope for injustice, whether in these cases or others, is as small as possible, since it doesn’t give the authorities a free pass if they ignore the safeguards in place to protect civil liberties.

In light of all this, let’s now look at what CJI Ranjan Gogoi and Justices SK Kaul and L Nageswara Rao did. Back in October 2018, the Bombay High Court had struck down a Pune trial court decision granting an extension of the activists’ detention.

This was because no charge sheet had been filed by the police within 90 days as required. While it is possible to get an extension of detention, this requires the public prosecutor to assess the situation and submit a report to the courts saying there is a need to keep the accused in custody for longer.

In this case, an extension was granted even though the public prosecutor never submitted a report. The investigating officer did, and his report was signed by the prosecutor, who later in the day submitted a separate application supporting the report.

The Bombay High Court found the extension to be invalid, which meant the activists should have got bail automatically. Unfortunately, Maharashtra appealed to the Supreme Court, and more than two months after, the judges finally decided to hear the appeal – while the activists languished in jail.

A month after the hearing, the Supreme Court finally pronounced its verdict, disagreeing with the Bombay High Court. According to the judges, the submission of the subsequent application by the public prosecutor makes the original report by the IO sufficient.

To argue against this decision may seem like splitting hairs, and indeed this is the view taken by the Supreme Court, which says that such objections are a matter of form not substance. But the problem is that questions of form can be directly tied to questions of substance in situations like this.

The point of having the public prosecutor submit the report rather than the IO is because the prosecutor is independent of the police, and is supposed to apply their mind to see whether the police really need further custody of an accused person.

Application of Mind?

When the prosecutor fails to submit this report, it becomes unclear whether they actually applied their mind when looking at the case, and a subsequent application doesn’t change that, even if it was submitted later the same day.

The failure to apply one’s mind is a consistent problem when it comes to criminal courts, with judges and prosecutors regularly failing to appropriately scrutinise the cases handed over to them by investigating authorities and see if the accusations are entirely baseless. There are several pre-trial stages where they can do this: Bail hearings, when the charge sheet is filed, quashing petitions, and discharge applications.

In such situations, the application of mind by the officers is vital and the procedural safeguards put in place to ensure this (like the prosecutor’s report) are vital. In the Hitendra Vishnu case in 1994, the Supreme Court had emphasised the importance of fulfilling these requirements, saying:

“The report of the public prosecutor, therefore, is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements”

In the Bhima Koregaon case, however, the prosecutor’s subsequent application to the court broadly just reproduces what the IO had already said, which doesn’t seem to indicate an application of mind. The Supreme Court, however, felt this was sufficient. It also held that the application satisfied the other requirement of the law, that it was necessary to keep the accused in custody for the investigation.

The lawyers for the accused had strongly contested this, arguing that the application only set out the police’s claims about the case, and in no way showed they would be at a disadvantage if the accused were let out on bail.

The lack of application of mind by the judge in the Khalistan case is obvious since the evidence was insufficient to demonstrate any waging of war by the men. But well before the trial, the public prosecutor and the police there should have realised there were no grounds to take that case forward, much like the police who registered an FIR for sedition against the AMU students should have.

What possible reason did the AMU students have for shouting anti-India slogans during a scuffle with rightwing groups? Was there any audio proof of this? And even if anti-India slogans were shouted by some people as a BJP youth leader claimed, how would this even constitute sedition?

The police may not be legal experts, but they are instructed in what the law says about criminal offences. The police should have realised that no case for sedition can be made out for mere sloganeering – by all means register the FIR under other offences, but leave out the nonsensical sedition angle.

Then again, if the senior courts aren’t going to do this, why should the local police? At least the inspector has said they will not proceed under sedition if there is no evidence, but a lack of evidence required to prove sedition (incitement to imminent violence) didn’t stop the Delhi Police from trying to file their charge sheet for sedition against Kanhaiya Kumar, Umar Khalid, and others.

The only reason that baseless case hasn’t gone forward is because Arvind Kejriwal’s Delhi government hasn’t given it sanction to proceed.

Which will not be the case if the AMU case goes forward. And as long as the courts don’t start putting their foot down and make sure these cases don’t see the light of day, the police will continue to file them, the prosecutors will continue to approve them, and sedition will continue to be a tool to browbeat and threaten dissenters or just about anyone a government (or just a local BJP leader) doesn’t like.

Courts Need to Step Up More Than Ever

Is it any wonder that the courts are not performing adequate scrutiny of civil liberties cases when there is so much vitriol against anyone suspected of anti-national behaviour?

• When the first reaction to the murder of dozens of jawans is to threaten those who have not taken a jingoistic stance in the past, why wouldn’t a trial court judge decide to be harsh on those accused of supporting a secessionist movement?
• When university students can be booked for sedition on the basis of dubious claims of anti-national slogans, why will senior judges ignore 5,000-page charge sheets alleging Maoist conspiracies, no matter how flimsy the supporting evidence is?

Much of the blame for this intolerant climate rests with the media, in particular certain prominent news channels. They can see populism sells, and so they are willing to peddle hateful propaganda, regardless of common sense or accuracy. But while the media should do better, journalists are private individuals at the end of the day, and they are under no binding fiduciary duty to do the right thing.

The courts, on the other hand, are supposed to do what’s right regardless of whether it’s popular. As the third branch of government, they actually have the power to stand up for themselves, to even keep the prime minister and Parliament in check. This is as sacred a duty as can exist in a secular, democratic society, and one that is essential to ensure the rule of law.

The justice system has to do better to ensure that the safeguards in our laws are not just words on paper, to ensure that the whims of a mob (or a politician) can’t take our freedoms away.

(This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)