Last week, the Allahabad High Court cited national interest as the ground for rejection of a petitioner’s plea seeking permission for a students’ protest against the Citizenship Amendment Act.
“It is not in the national interest to give any relief to the petitioner at all. If the petitioner is a citizen of India, he must maintain peace at any cost. We are not inclined to interfere in the matter,” the bench ordered.
The bench refused to go by the assurance of the petitioner that the students’ protest would be peaceful.
In what has now become a worrisome trend with India’s constitutional courts, the bench sided with the police and, therefore, against the rights of the citizens.
The courts have started behaving like the executive, something the framers of the Indian Constitution would have strongly opposed.
And by pitching so-called ‘national interest against citizens’ rights, the court has strengthened an unfortunate and unhealthy binary for Indian democracy.
This is a slippery slope towards the erosion of democracy and hard-fought freedoms. Democracy isn’t just about fighting and winning elections; it’s also about the right to express dissent, to protest, to air grievances as long as it is done in a non-violent way.
There is no room for national security clause to be invoked when it comes to the citizens’ right to protest peacefully – that is, if the judiciary wants to avoid the criticism that it is partisan.
Whose national interest?
The court observation doesn’t say whose definition of national interest it is going by. If one believes the Narendra Modi government, then things have never been better for India.
Why should a high court be worried about the ‘national interest’ taking a hit if some citizens, mostly students, hold a protest demonstration? Shouldn’t the court be more worried about protecting the citizens’ right to protest rather than the possible loss of face of the government? The need for a balance between so-called national interest and civil rights has never been more pronounced as it is right now in India. But the courts, especially the Supreme Court, seems impervious to this.
In recent times, police forces in several states have resorted to violence to break peaceful protests. But the courts have failed to take note.
In the aftermath of the dilution of Article 370 in Kashmir, the Supreme Court did precious little. Even the obiter dictum seems to have been discarded in favour of the government.
How can anyone sitting in the Supreme Court, while favouring restoration of normalcy in the erstwhile state of Jammu and Kashmir, send out a caveat that it must be done in a manner that doesn’t hurt national interest? But now that the court has ensured that national interest won’t be hurt, should it not turn its attention towards the interest of the nationals, many of whom have been locked up for several months on laughable grounds?
Protesters not even entitled to bail
But the bigger problem, one that has long-term consequences, lies in the way the courts have dealt with these so-called “anti-national”.
In case after case, we have seen the scales of justice tilt against those opposed to the Modi government, often on the basis of flimsy evidence. In most instances, the ‘evidence’ was not even shared with the accused and handed over to the bench in sealed covers.
Bhima Koregoan is just one example of this travesty that India’s justice delivery system has become in recent times.
When the state starts using its brute power to crush peaceful anti-government protests, it is often the courts that come to the rescue of the citizens. In the last few years, the opposite seems to have happened in India.
The Supreme Court has often said that bail is the rule, not an exception. But in recent times, the court has chosen to ignore its own words.
In Shakul Hammed versus Superintendent of Police, National Investigation Agency, Kochi, the Madras High Court had noted: “The quality of a nation’s civilisation can be largely measured by the methods it uses in the enforcement of criminal law”. Unfortunately, the courts have largely ignored this.
Since the Modi government seems more inclined to send citizens to jail rather than work to protect their civil liberties, time has come for India’s courts to lay down clear guidelines on the grant of bail.
The author is a senior journalist. Views are personal.