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Business News/ Opinion / Columns/  The judiciary should protect our rights and not just ensure order

The judiciary should protect our rights and not just ensure order

Justice seekers are in the dock and bail seems elusive in too many cases to inspire much confidence

Photo: MintPremium
Photo: Mint

In an interview to New Perspectives Quarterly in 2009, modern Singapore’s founding father Lee Kuan Yew credited the economic success of the island nation to an unusual factor: air-conditioning. He called it a signal invention of history, changing the nature of civilization by aiding economic development in the tropics. “Without air-conditioning you can work only in the cool early-morning hours or at dusk," he said, and so he installed air-conditioners for civil service officials. That, he said, was key to public efficiency.

I hope the Supreme Court justices in India have air-conditioned offices and homes. The Delhi summer is harsh, it can sap one’s energy, and nobody should grudge judges—or anyone else for that matter—such creature comforts. And yet, the bench that dismissed Zakia Jafri’s and Teesta Setalvad’s petition to re-examine the case to prosecute those responsible for the brutal murder of former parliamentarian Ehsan Jafri during the 2002 massacres in Gujarat, ridiculed the human rights lawyers and activists for presumably operating from air-conditioned comfort. The remark was gratuitous, similar to churlish barbs hurled on social media implying that those operating in air-conditioned comfort are detached from reality, or somehow insincere.

As things now stand, like Jessica Lal, nobody killed Ehsan Jafri; and those seeking justice have been described as badly motivated, out to frame innocent people. Setalvad is now in the dock. Within a day of the judgement, India’s home minister offered his own interpretation of (and assertions on) what happened in Gujarat in 2002; and perhaps entirely coincidentally, Gujarat’s law enforcement officials turned up at Setalvad’s home in Mumbai and detained her, during which, she alleges, she was assaulted. The complainant has not only been admonished for her temerity to mount a legal challenge, she is to be made an example of, it would seem, so that others know better. The size of her home has been criticized on social media, and some commentators misleadingly claimed that Setalvad’s great-grandfather, Chimanlal Setalvad, exonerated British General Reginald Dyer who ordered troops to kill civilians at Jallianwalla Bagh in 1919, though he had in fact dissented along with two other Indians on the Hunter Commission.

The irony of Setalvad’s arrest on the anniversary of the 1975 Emergency was not lost. Ironies have multiplied since: Within a day, India’s prime minister was in Germany speaking about freedom of expression even as his government asked Twitter’s Indian arm to block tweets by Freedom House, which said India blocks the internet. As if to highlight consistency in action, if not in words, Mohammed Zubair of the fact-check site AltNews was arrested for a tweet with an image from a popular film which had not offended anyone in decades, after a Twitter handle with a negligible following complained of hurt sentiments. Like other such sites, AltNews exists because some mainstream media organizations have acted as propaganda arms of the government while others lack resources to check the accuracy of every story. AltNews exposes disinformation, annoying everyone, with each exposed purveyor of falsehoods alleging that the site is biased.

These cases reveal a disturbing pattern. The state has the responsibility to investigate and prosecute crime, but the judiciary has to determine if the charges are grave enough to require custody of the accused. Several judges have spoken eloquently of the rule of law and how bail should be the norm and not the exception, but they have done so either in lectures or after retirement. On the bench, many judges accede to the prosecution’s request and deny bail. So the process becomes the punishment. Indeed, the law should always take its course, but the principle should be the rule of law, and not rule by the law.

Pro-government broadcasters and a vociferous online chorus say that if the arrested individuals are innocent, the court will say so. But charges take forever to be filed and Indian jails remain filled with dissidents. Meanwhile, Stan Swamy dies, Varavara Rao becomes gravely ill, and Sudha Bharadwaj does get released, but not Umar Khalid and many others. The state argues it can’t make exceptions, but good governance lies in the exercise of judgement, not in rubber-stamps placed on orders based on rules. The state has to serve both niti and nyaya, as Amartya Sen wrote in The Idea of Justice. Niti is about the justness of rules and institutions, and nyaya is the way to realize the same. Justice is meaningful if niti guides it, while nyaya makes sure it is enforced.

Instead of protecting rights, Indian courts appear to be protecting order. A court that once treated a postcard with dignity and turned it into a petition to hold the state to account now wants to hold complainants to account for having the gumption of challenging the state.

This is not the Emergency, we are told. It isn’t; there is no Justice H.R. Khanna on the bench dissenting regardless of the consequences to his career.

As the Singaporean writer and academic Cherian George memorably put it, Lee’s Singapore was eventually an air-conditioned nation, where the climate was kept under control. As it turns 75, the argumentative nation is becoming a conditioned nation.

Salil Tripathi is a writer based in New York. Read Salil’s previous Mint columns at

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Published: 29 Jun 2022, 10:21 PM IST
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