Act to protect individual liberty

It is time the judiciary intervened decisively to safeguard personal freedoms of citizens

Alok Tiwari

Last few months have seen two sitting chief ministers arrested forcing the resignation of one of them. Delhi’s deputy chief minister and health ministers have been languishing in jail for a long time with no hope of getting out. There are others like Umar Khalid who have been locked up for years together without being convicted of any offence. Several accused in the so-called Bheema-Koregaon case spent years in custody. Some could secure their release only after repeatedly approaching the highest courts in the land.

As we observe the 49^th anniversary of the infamous Emergency, it is time to look at how far the Indian state has shed its authoritarian tendencies and how much it cares for human rights. The sad answer on both counts is not a lot. The examples quoted above are just a handful of high-profile cases. These citizens had to lose their liberty for prolonged periods despite having access to top legal aid or having lobbies behind them campaigning for their release. There are thousands and thousands of nameless others in jails across the country as accused or undertrials.

Article 21 of the Indian constitution may guarantee the right to life and personal liberty but on the ground, it does not amount to much. It says no person will be deprived of his life or personal liberty except according to procedure established by law. So what if the laws themselves sanction prolonged incarceration without the investigating agencies having to prove anything against the accused?

Governments have enacted laws that allow brazen abridgement of rights in the name of curbing terrorism or serious offences like money laundering. They justify such unjust laws saying persons who can cause serious harm to the society cannot be allowed to remain free for the period it takes to gather evidence against them. And this can take time during which period the person may well destroy the evidence. High and supreme courts have accepted this argument and endorsed such laws.

Over time however it is clear that these laws have been misused by the government of the day to curb dissent and persecute political opponents. The most egregious example of this has been the PMLA (Prevention of Money Laundering Act) and its enforcement agency the ED. The agency has been turned into a bulldog of the government to bend opposition politicians to its will. Those who did not fall in line were arrested and made to spend weeks and months in jail. The same has been the case with CBI that often allowed itself to become a tool of political vendetta by the government. Now the provisions of new penal and criminal procedure codes allow the police forces even more leeway to act against citizens.

This is unacceptable in a democracy. Depriving a person of their liberty is the most serious harm that can be caused to them short of taking their life. Indeed, that is why the constitution puts the two rights together in the same sentence. The unmistakable message is that there can be no life without liberty. When the state, on flimsy or dubious grounds, deprives a person of their liberty, it is depriving them of the life itself. It should not be allowed, particularly in an environment when agencies either out of incompetence or because of political expediency do not complete trial expeditiously. It is a grave miscarriage of justice, seen repeatedly happening in India.

Since it is highly unlikely that laws will be changed to offer more protection to citizens it is up to the judiciary, the last bulwark against authoritarianism left as of now, to decisively intervene and restrict such blatant misuse of laws to curb individual freedoms. Through observations and rulings on cases before it, the Supreme Court can and should set limits on how far the state can go in restricting fundamental rights.

Like it set the limit of 50% on reservations, the court could set a reasonable limit on a person’s incarceration, say, of six months, regardless of any provision in any law. The agency making the arrest should be enjoined to start the trial within that period or the person should automatically get bail. The trial once started should be completed in another six months resulting in either acquittal or conviction. Like in case of making an arrest, it could produce detailed guidelines on grounds of which custody may be asked for and granted.

This would force the police and other agencies to be much more circumspect before making an arrest. It would also force them to not to make an arrest unless they have solid evidence of wrongdoing with them. One reason agencies so casually make arrest and seek prolonged custody of citizens is that officials and ministers directing them face no consequence for their act. The pathetic conviction rates of even premier agencies point to the fact that either most cases they take up are bogus or the agencies are hopelessly incompetent. Citizens should not be paying price of that.

We also need laws, and in absence of those, directions from judiciary to make individuals who deprive citizens of their liberty without sufficient grounds pay dearly for the same. Courts should entertain and expeditiously decide cases of seeking damages from individual officers, agencies, and even ministers for malicious prosecution once a person has been proved innocent. These damages must come from personal estates of such officials and must include minister in-charge of the agencies since most such cases are directed politically.

For far too long courts, especially at lower level, have indulged unreasonable demands of investigating agencies. They need to step up to protect personal freedoms too. The fundamental principles of jurisprudence that a person is presumed innocent until proved guilty and that no innocent should be punished even if a hundred criminals go scot-free must be reinstated in letter and spirit.

This column appeared in Lokmat Times on June 26, 2024