The Supreme Court’s landmark intervention in a series of petitions challenging the constitutional validity of Section 124A of the Indian Penal Code is a watershed moment in the progressive expansion of human rights jurisprudence.
The rampant abuse of archaic colonial law in recent times has infringed upon citizens’ right to liberty and due process, thereby compromising their right to reputation and dignity. Cartoonists, journalists, activists, intellectuals, students and politicians have faced lengthy incarcerations and oppressive criminal trials for their beliefs and beliefs. More recently, sedition charges against political and other opponents in Maharashtra, Punjab, Rajasthan, Chhattisgarh, Tamil Nadu, Andhra Pradesh and Madhya Pradesh have confirmed that abuse of the sedition is no longer an aberration. It has become a norm that has gutted the constitutional guarantee of basic rights and exposed individuals to the rigors of unjustly invoked draconian laws, outraged national sensitivities like never before.
Within this contextual framework, the Supreme Court’s May 11 order is widely seen as an act of judicial policy. Seizing the opportunity offered by the government’s revised affidavit to the court asking for time to review the sedition provision, the court, while conceding the government’s request to postpone the hearing, issued its much acclaimed interim directions. These effectively suspended pending prosecutions under the challenged laws, granting freedom to those detained for offenses under Section 124A to seek bail from the relevant courts. The court also made it unequivocal that it expected that the central government and state governments would not invoke the disputed provision in the future, before a final decision on the matter.
In what is considered a first in judicial history, the Supreme Court virtually rendered the provision of a criminal statute superfluous without expressly declaring it unconstitutional. His instructions, although expressed “prima facie”, clearly indicate what the court’s final decision, if any, might be. In an example of judicial statecraft, the court protected individuals from harsh law without infringing on the legislative powers of Parliament or the executive’s control over policy decisions. Leaning firmly in favor of the libertarian conscience of the Constitution, the court of Ramana met the expectations of the nation as a constituted guardian of the constitutional principle. Navigating between “Herculean” and “Sisyphean” conceptions of the judicial role, the court indicated its philosophical preference for “keeping a libertarian thumb on the scales of justice”, aligning itself with the collective conscience and the moral imagination of the nation. It has shown that the highest court is not immune to finer sensitivities and “swellings of the heart” when the freedom and dignity of individuals are at stake. The college of three eminent judges chaired by the judge in Chief validated the aphorism attributed to Judge Oliver Wendell Holmes that “judges can be heavy without being heavy”.
Given that each judgment has a generative power and a “directive force for future cases of the same or similar nature”, it is quite normal for the Supreme Court to ensure a teleological execution of its decisions which affirm the sacro- saint of human rights. , a duty recognized on several occasions in its judgments. (Baradakanta Misra, 1974; Nagaraj, 2006; Shayara Banu, 2017; Brajendra Singh, 2016, et al). Exercising full jurisdiction, the Supreme Court is expected to see through its suggestions/orders to the government, especially when these concern the basic non-negotiable rights of citizens.
As with the sedition law, it may push the government to enact an anti-lynching humanitarian law as it has suggested (Tehseen Poonawala, 2018) and a comprehensive law against torture in custody, given the proven inadequacy of the directives it issued for its elimination. (DK Basu, 1997).
Even as the nation continues its quest for a truly libertarian and liberal democracy, the scourge of torture in custody continues unabated. A report by the National Campaign Against Torture confirmed that 1,731 people died in custody in 2019 alone. The absence of a law against torture in custody, a glaring gap in the architecture of the criminal justice system , is inexplicable in view of Article 21, the recommendations of the Select Committee of Rajya Sabha (2010), the Law Commission of India (2017) and the Human Rights Commission and the judgments of the Court supreme (Puttaswamy, 2017; Jeeja Ghosh, 2016; and Shabnam, 2015).
The court is also expected to intervene appropriately and read the UAPA and other criminal laws that have been repeatedly misused to trample on civil liberties and the rights of the people. Instances of their misuse are indelibly etched in the consciousness of the nation. As an organ of the state, the suggestive jurisdiction of the Supreme Court is clearly consistent with its stated law (Nagaraj, 2006) that the state (of which the court is an integral part) has a duty not only to protect individual rights, but is also obligated to facilitate the same.
This is indeed the moment to be seized, as the government reviews the legal structures of the nation. The initiatives suggested above serve a democracy rooted in the inviolability of human rights and would strengthen India’s soft power in its engagement with the international community. Court-inspired initiatives would also validate the nation’s preeminent role in shaping a new world order.
Governments, for their part, must know that they can only subsist when they are founded on freedom and justice. For now, the Prime Minister has done well to decide to review a law that is anathema in a free country. Hopefully the nation will be rid of the last vestiges of colonialism which defy the will of the times, the promise of our national charter and are at best a painful reminder of the injustices inflicted on our people.
This column first appeared in the print edition of May 18, 2022 under the title “Act of judicial authority”. The writer is a former Union justice minister