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On Tuesday, June 15, the Delhi high court granted bail to three young activists charged under the draconian Unlawful Activities (Prevention) Act (UAPA) for having engaged in protests that allegedly incited violence in the Northeast Delhi riots last year, threatening, as per the charge, the stability of the state.
The court observed: “In its anxiety to suppress dissent, in the mind of the state, the thin line between the constitutionally guaranteed right to dissent and terrorism was blurred. If the same mindset continues, it will be a sad day for democracy.”
As we know, the prosecution went with a challenge to this observation to the Supreme Court, contending that the observation made by the high court was “perverse”, and uncalled for in granting bail.
The top court, keeping the bail order intact, remarked that it was “surprised” by the high court’s observation. It felt that the matter of the legitimate use of the UAPA law needs to be examined, since what the high court had said would have pan-India ramifications. The top court, therefore, instructed that till such time as responses to notices issued were not received, and the substantive matter examined, the determination of the high court would not be construed to be a precedent.
These events followed upon India signing off on a very comprehensive and rather unprecedented joint “open societies” statement of the G7 group of democracies.
The above statement spoke of “online and offline” “freedom of expression,” “right to assemble” and to peaceful “protest” as fundamental to democracy, noting also that “politically motivated” curbs on Internet use constituted a threat to democracy.
Interestingly, the Indian prime minister averred how these values were inherent to India’s “civilisational ethos” — a contention that may be open to question by the bulk of Indian women and Dalit populations, namely, some 60% of people at current reckoning.
It remains a question, for example, as to what percentage of Indians in centuries gone by were allowed to be “argumentative Indians” that Amartya Sen spoke of in a book of that title.
Be that as it may, the quality of allegiance that the Modi government has shown to the founding idea of dissent remains a troubling question. Democrats, both within the country and outside, have repeatedly spoken to that anxiety, despite claims made by the Indian government. Indeed, in recent months, many courts in India have quashed charges of “sedition”, for example, levelled against journalists and pro-democracy activists who have sought to foreground constitutional principles bearing on the fundamental rights of citizens, noting repeatedly that views critical of the government of the day do not tantamount to seditious activity. The Supreme Court has likewise observed that the matter of sedition now needs to be re-examined in toto.
Now that the Supreme Court has taken upon itself to enquire into the UAPA law and its lawful applicability, millions of citizens wedded to the spirit of constitutional democracy will hope that the all-important principle of the right to democratic dissent and peaceful protest against government policy, underscored by the Delhi high court, will receive consideration that may restore the balance between citizens’ democratic rights and the state’s overbearing insistence on compliance with governmental actions without protest or demur.
Indeed, the desirability of the UAPA law itself may need to be reviewed, recalling that the old, draconian TADA was eventually repealed.
After all, if Indian democracy is to credibly set itself apart from China, to take one example that had come up in the G7 meet, that distinction must be rooted in both the quality of our legislations and in the tolerance shown to the citizen who thinks it right to oppose policies that come to be seen as inimical to the soul and substance of constitutional democracy.
That reorientation must bear on the independence of all state institutions that function as watchdogs of “freedom of expression” that does not constitute violent, anti-state activity. “Open societies” can have little meaning or substance unless that purpose is served with conviction and care.
It is a sine qua non that democracy does not merely comprise periodic visits to the polling booth, but a deep and sacred belief in the right of citizens to interrogate power structures in the best interests of transparency and accountability on a sustained basis, and in order to ensure that laws are applied with germane validity without fear or favour – a matter, for example, which has been seen as woefully lacking in the case of the Northeast Delhi riots, wherein instances of blatant partisanship have come to light, with those who were actually seen to speak incendiary words kept out of the ambit of applicable laws while many others charged without any strong evidentiary ground as repeatedly pointed out by concerned trial courts.
For these reasons, the proceedings of the top court in the matter of the cases on hand and of the laws applied or misapplied will not but have a far-reaching bearing on how citizens dedicated to protecting democratic verities may come to see the shape of things that may confront the republic in the near and far term.
Needless to say, that the institutional and composite experience of recent years persuaded the ordinary citizen to repose most of her faith in the Supreme Court of India.
Badri Raina taught at Delhi University.