Vinod Mubayi

Medieval courts used to have a court jester who was allowed to lampoon the nobility or even poke fun at the ruling monarch as a way of blowing off steam; his antics were permitted ostensibly on the grounds that what he said was a joke and not to be taken seriously thereby allowing the targets of his barbs to save face. The Indian legal and judicial system does not seem to be able to display a comparable liberality towards comedians. The Attorney General has sanctioned prosecution of the comedian Kunal Kamra for daring to label the Supreme Court of India a Supreme Joke.

In committing his act of lese-majeste Kamra seems to be on solid ground regarding the facts. All he did was to point out the rank hypocrisy of the Supreme Court justices piously intoning freedom of speech in giving bail to Arnab Goswami, the loud-mouth TV anchor and Modi supporter, after just a few days in custody, while denying the same to many, many others who have suffered incarceration for much longer periods but whose speech happened to be critical of the Modi regime’s actions or policies.

Well-known commentators deplored this action of the Supreme Court. The noted columnist Pratap Bhanu Mehta called it an act of “judicial barbarism.” Advocate Navroze Seervai wrote in the Indian Express newspaper of Nov. 18: “While the Sudha Bharadwajs of this country languish for years in illegal detention, Goswami is released at lightning speed, with hollow, sanctimonious proclamations in defence of democracy, freedom of speech, and about the impermissibility of a person languishing in jail for a day longer than necessary.” The most penetrating criticism came from retired Justice A.P. Shah former Chief Justice of the Delhi High Courts and former chair of the National Law Commission. In a recent interview given to the Wire news portal, he commented that the Supreme Court has “completely abdicated its duty to defend fundamental rights,” and “to a large extent …is letting down the people of India.”

Goswami’s swift release on bail while others have continued to languish in jail elevated the rank hypocrisy of the court’s reasoning to such a pitch that it has also begun to draw rebuke in editorial columns of the mainstream media. But the court’s lack of concern for the fundamental rights of citizens guaranteed in the constitution not to speak of the elemental principles of justice when they somehow impinge on the interests of the ruling party has gone on for a long time. Thus, the court still has not ruled on the case of the opaque electoral bonds scheme for funding elections promoted by the BJP regime; the case was brought before the court in 2018 and argued prior to the May 2019 national elections. Habeas corpus pleas have gone unheeded for months. J&K statehood was abolished abruptly on August 5, 2019, thousands of its residents jailed on specious grounds, where many still remain unseen and unheard, and the entire population of the erstwhile state was deprived of the internet network, a necessity in this day, for many months before an outdated low-speed version was grudgingly restored in some areas. The plight of the millions of migrant laborers stranded in metropolitan cities by Modi’s announcement of the corona lockdown in March 2020 and forced to walk hundreds of miles to the native villages on foot with many dying on the way by the roadside remained unaddressed by the court. Students, academics, and ordinary citizens, most of them minority Muslims, arrested by the Delhi Police under trumped up, draconian charges who did nothing more than exercise their constitutional rights of freedom of speech and assembly to protest against the Citizenship Amendment Act continue to rot in jail for months on end denied bail by the same court that was so anxious to grant those same rights to Arnab  Goswami. But the most egregious, if not outrageous and inhumane, conduct of the court has been evinced in the denial of bail to octogenarian prisoners in the fabricated Bhima-Koregaon case, the poet Varavara Rao suffering from a host of diseases, including neurological illness and incontinence among others, and the Jesuit priest Fr Stan Swamy suffering from advanced Parkinson’s disease whose hearing on an application to the NIA court to provide him a drinking straw as he is unable to hold a glass of water was put off for several weeks. Other elderly prisoners in their sixties and seventies incarcerated in the Bhima-Koregaon case include the lawyer Sudha Bharadwaj, who suffers from diabetes, the well-known academic Anand Teltumbde, and the journalist Gautam Navlakha. All continue to be denied bail with no trial date in sight. Journalist Siddique Kappan, arrested by the UP police while on his way to Hathras to interview the family of the Dalit woman raped and killed by her upper-caste neighbors, has also been denied bail by the Supreme Court. According to Justice Shah, quoting the late Supreme Court Justice V.R. Krishna Iyer, previously bail was the rule and jail the exception; the current Supreme Court has now made jail the rule and bail the exception. In Justice Shah’s view “it seems we are living in a state of undeclared emergency.”

It is no secret that for the last few years, the Court has displayed a particularly servile obsequiousness to the sensibilities of government whenever its actions have been challenged by its opponents. Why it has done so, whether judges feel intimidated or whether they are venal, is a matter of speculation. The examples of the late Bombay High Court judge Justice Loya, who passed away mysteriously in Nagpur, and the former Chief Justice Gogoi, who was given a sinecure in the Rajya Sabha immediately after retirement, suggests that both alternatives are possibilities.

Whatever be the predilections of individual judges, the transformation of Indian democracy into a majoritarian state more closely patterned on Nazi Germany will be put to a stern test before the court when the constitutional legality of the various “love jihad” laws being passed by BJP-ruled states like UP, MP, and Karnataka will be tested. These laws will make legal inter-religious marriages almost impossible, transforming something which is already difficult in practice, given the influence of caste panchayats and other social institutions in connivance with state authorities, into a legally forbidden act. Christophe Jaffrelot commented pithily that such laws will transform a de facto Hindu rashtra into a de jure one.

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