Justice Markandey Katju-
The most important case going on in India today is not the Babri Masjid/ Ram Mandir dispute but the trial of the Indian Supreme Court by the people of India. And a litmus test in this trial will be the behavior of the Court in the case against the arrest and detention of Farooq Abdullah under the draconian J&K Public Safety Act.
The Supreme Court was created by the Constitution of India on 26th January 1950, and a few months after the promulgation of the Constitution it was held by a Constitution Bench of the Court in Romesh Thapar vs State of Madras that ” The Supreme Court is constituted as the protector and guardian of the fundamental rights of the people”. This view has been reiterated in several subsequent decisions of the Court e.g, the 9 Judge Bench decision I.R.Coelho vs State of Tamil Nadu.
The most precious of all the fundamental rights is the right to life and liberty, enshrined in Article 21. In Md Sukur Ali vs State of Assam the Supreme Court observed ” Liberty of a person is the most important feature of our Constitution. Article 21, which guarantees the protection of life and liberty is the most fundamental of all the fundamental rights guaranteed by the Constitution, and it can be said to be the heart and soul of the fundamental rights “.
Article 21 was enshrined in the Constitution because the Founding Fathers were themselves freedom fighters who had seen the civil liberties of our people trampled upon under foreign rule, and who had themselves been incarcerated for long periods under the formula ‘No vakeel, no daleel, no appeal’. Hence, they were determined that such arbitrariness does not recur in free India.
However, during the Emergency of 1975-77 arbitrary arrests became the order the day, and instead of declaring these illegal, the Court shamelessly abandoned its solemn duty under the Constitution by rendering the disgraceful ADM Jabalpur vs Shivakant Shukla judgment ( see online ) holding that a citizen had no right to life and liberty once Emergency is declared. In other words, in an Emergency, citizens could be shot or jailed without trial by the executive with impunity.
In recent days too, when fascist tendencies have again emerged in India, the performance of the Supreme Court and many High Courts has been disappointing. For instance, bail was denied by the Supreme Court to Abhijit Iyer Mitra who had only made a satirical tweet about the Konark temple ( for which too he had soon apologized), which was against the settled principles for granting bail laid down by the celebrated Justice Krishna Iyer in State of Rajasthan vs Balchand ( see online ). While rejecting bail, CJI Gogoi made the flippant and cruel remark, least expected of the pater familias of the judiciary, that the best place for the petitioner was in jail.
We may contrast this with the observation of the distinguished judge of England, Lord Denning, who in Ghani vs Jones (1970) 1 Q.B. 693 observed ” A man’s liberty of movement is regarded so highly by the laws of England that it is not to be hindered or prevented except on the surest ground “. This decision of Lord Denning was approved by the seven-judge Constitution Bench decision of the Indian Supreme Court in Maneka Gandhi vs Union of India ( 1978 ), and hence it has become the law of the land in India too.
In the case relating to the Bhima Koregaon accused ( Romila Thapar vs Union of India ) the Court should have quashed the entire prosecution relying on the Brandenburg test ( see my article ‘ The litmus test of free speech ‘ online ), observing that there was no danger of any imminent lawless action by the acts of the accused even assuming the allegations against them to be true ( though they appear to be on the basis of manufactured evidence ).
Coming to the arrest of Farooq Abdullah under the draconian Public Safety Act, the grounds given are that he incited violence. This is manifestly absurd, and the Supreme Court should forthwith quash the order of the government applying the Brandenburg test which had been followed by two decisions of the Court viz Sri Indra Das vs State of Assam and Arup Bhuyan vs State of Assam ( see online ).
Farooq Abdullah’s record has been that he was always an ardent Indian nationalist all his life, and he was never a secessionist. But he was deeply upset by the revocation of Article 370 which gave a special status to Kashmir. Even assuming he wanted azadi for Kashmir, this is no crime. Many people demand azadi e.g. Khalistanis, many Kashmiris, some Naga groups, etc, and such demands are protected by the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. It is only if one goes beyond that and commits violence or incites to imminent violence that it becomes a crime. There is nothing to show that Farooq said anything which incited imminent violence.
The J&K Public Safety Act, which permits detention upto 2 years without trial, has been declared ‘ a lawless Act ‘ by Amnesty International. It is similar to the Rowlatt Bill of 1919 against which the Rt Hon’ble Srinivas Shastri said these memorable words in the Imperial Legislative Assembly ” When the government undertakes a repressive policy the innocent are not safe. Men like me would not be considered innocent. The innocent then is he who forswears politics, who takes no part in the public movements of the time, who retires into his house, mumbles his prayers, and salaams the government officials all around. The man who interferes in politics, who address public meetings, becomes suspect. Possession in the hands of the Executive of powers of this drastic nature will not hurt the wicked alone, it will also hurt the good, and there will be such a lowering of public spirit that all talk of responsible government will be a mere mockery. Much better that a few rascals should walk abroad than that the honest man should be obliged for fear of such a law to remain shut up in his house, to refrain from activities which it is in his nature to indulge in, to abstain from all political and public work, merely because there is a dreadful law in the land.”
These are the times that try men’s souls, to use Thomas Paine’s words, and especially will they try the souls of the men in our judiciary. If the judiciary fails in its duty to uphold the civil liberties of citizens provided in the Constitution, as it did during the Emergency, then it will be said of it by the people of India, as was said in the Bible ( Daniel : 5 : 27 ) ” Thou art weighed in the balance, and found wanting” (words used by Winston Churchill to the Neville Chamberlain Government on 5th October 1938 after the signing of the shameful Munich Pact with Hitler).
[Justice Markandey Katju is former Judge, Supreme Court of India and former Chairman, Press Council of India. The views expressed are his own].