Go beyond the lip service

Courts are not as helpless in protecting liberty as justices say they are

Alok Tiwari

At a time when democratic space for the citizens is inexorably shrinking, it was heartening to see chief justice of India, Justice Surya Kant Sharma at least acknowledge that completion of trials under the notorious Unlawful Activities (Prevention) Act (UAPA) was a challenge. The CJI was responding to a query in a media interview on criticism about many accused under the act remaining in jail for prolonged periods, specifically the denial of bail to Delhi riots case accused Umar Khalid and Sharjeel Imam. Justice Sharma admitted this problem needed to be addressed on the judicial side.

The two are in jail for over five years now with no sign of their trial beginning. But theirs is not the only case. There are many people facing prolonged incarceration, extending to months and even years with the prosecution showing no urgency to start the trial. The state has often used such laws to jail people whom it just deems inconvenient. UAPA, an old law enacted specifically to address terrorism, has been progressively made more stringent and its use expanded to curb even all manner of dissent.

It has been used in Bhima Koregaon case under which several people, notably activists fighting for rights of tribals, were jailed while NIA delayed their trials. They struggled to get bail for years with one of them, octogenarian Stan Swamy, even dying in custody. UAPA is hardly the only law that abridges personal liberty. The Prevention of Money Laundering Act (PMLA) is another one. The new basic criminal laws brought in to replace IPC and CrPC also contain provisions that chip away at individual liberty granting increased powers to police.

Former CJI Justice D Y Chandrachud had also cited some recent laws, specifically naming PMLA, that essentially require the accused to prove their innocence just to get bail. All the Enforcement Directorate, the agency enforcing PMLA, needs to do is to level outlandish charge without having to establish even a prima facie case. We all know how those provisions are being used.

Practically all opposition leaders of consequence have had cases instituted against them by the ED. It also raided homes, offices and carried out other intimidatory acts. At least two sitting chief ministers were arrested. Political insiders talk about pressure from the agency being behind large scale defections from opposition parties to the ruling party or at least in the shift of allegiance to ruling alliance. There appears substance to such talk because these cases have the tendency to disappear once political allegiance has shifted.

Obviously, these laws are not being used to meet the objectives for which they were originally enacted. They are instead meant to provide the state agency means to intimidate and harass political opponents and people raising uncomfortable issues. Recently Sonam Wangchuk was jailed for months under National Security Act. As the law’s name implies it is meant to be used in circumstances and against persons that threaten national security. Even his worst critics will agree Wangchuk has never been such a threat.

This was not even the most egregious misuse of the law. Police in various states have off and on used it against local goons to put them away for extended periods when they were unable to do so under normal criminal laws. It is ludicrous that police need to invoke national security to check small time criminals. They do so only to hide their own ineptitude and corruption that prevents the cops from building a case strong enough to get even a minor goonda convicted.

In an environment where government agencies are openly abusing provisions of such laws to either settle political scores, neutralize opposition, or to paper over their own incompetence, it is then left to courts to ensure that things are set right. The abysmal conviction rates prove that agencies have no real ground to launch cases. That is why they are not keen to begin the trial but still want to keep the accused in custody endlessly. The handwringing by the judges in such cases, particularly by the CJI, is a massive let down for citizens looking for justice. It is clear through years of their invocation, that the governments are intent upon abusing the laws than using them appropriately. And a direct result of this abuse is violation of citizens’ liberty.

The court cannot be helpless witness to this erosion of liberties and civil rights. Indeed, the Indian supreme court has expanded the rights of citizens when they were threatened by executive and legislative actions. It has gone beyond the letter of Constitution to give meaning to those rights. We now have right to privacy even though Constitution does not even mention the word, thanks to judicial interpretation. The court has neutralized laws against attempted suicide and homosexuality by defining the rights expansively. Very recently it even ruled walking on the road to be a fundamental right.

Freedoms of speech, assembly, movement, and residence are specifically mentioned as fundamental rights under the Constitution. Surely, they stand on a level above the right to walk on the streets. When legislature and executive are bent upon trampling them it is the duty of the judiciary to step in. It is one branch that is theoretically immune to all pressures. Could the justices not rule that laws allowing prolonged jail without trial violate freedom of movement and residence, the right to life itself? Could they not hold that presumption of innocence is foundation of liberty and turning burden of proof on the accused is unconstitutional, be it in the case of criminality or citizenship? If the state realizes it cannot keep jailing simply by enacting stringent laws, maybe it will begin to give its agencies resources and training they need to build watertight cases They will then be less of stooges of ruling party and more of law enforcement agencies they are meant to be.

This column appeared in Lokmat Times on July 16, 2026