No, Judge Sahebs, Some of Your Pronouncements Outside the Courts Are Way Out of Line

No, Judge Sahebs, Some of Your Pronouncements  Outside the Courts Are Way Out of Line

Open letters have again become fashionable for the Lutyens Zone lot and the secularist stormtroopers, after the anti-CAA uproar engulfed the country in the last two months or so. This present effort of mine, however, does not fall in this hallowed category. It is actually directed to the readers of this publication, and, through them, to the general body of Indian citizens.

In a recent speech to law students at a university in Ahmedabad, a sitting Supreme Court judge was reported to have lamented the fact that citizens who disagree with official policies have allegedly been labelled as “anti-national” etc. He was quoted in a leading English daily as having declaimed the following: “Within bounds of law, liberal democracies ensure citizens enjoy (sic) right to express themselves in every conceivable manner, including right to protest. The blanket labelling of dissent as anti-national or anti-democratic strikes at the heart of our commitment to protection of constitutional values and promotion of a deliberative (sic) democracy”

This makes good copy for the subbing staff on a Saturday evening in Delhi’s version of Fleet Street. In fact, the refrain was picked up by the same newspaper’s editorial pundits two days later who went on to enlighten the readers that the statement in question had delivered a “timely, lucid and powerful reminder” on the importance of the right to dissent. This is all very welcome in the abstract, but it also invites a very necessary and rigorous scrutiny of this issue. I propose to do so in this essay.

The problem with allocutions of this nature is that it they have a number of hues and nuances that are interlinked but, yet, are substantive on an individual basis. Let us start with the first one, namely the assertion that citizens in a liberal democracy like the Indian Republic have the right to express themselves in “every conceivable manner, including the right to protest”. Admittedly, this was qualified at the very beginning to say that the dissenting people must be “within bounds of law (sic)”. The catch is that there are inherent difficulties and contradictions in such a stand, particularly when we look at the actual events in the last two months.

The first dilemma is as follows. If the boundaries of law have to be respected, you cannot have the right to express yourself in “every conceivable manner”. Let us remember the famous judgement of Justice Oliver Wendell Holmes which stipulates that no one has the right to scream “fire” in a crowded cinema hall when there is actually no such conflagration.

I have discussed this landmark judgement (delivered many decades back) in a few of my earlier essays. The issue, basically, is the dissemination of a false warning under the umbrella of free speech and Justice Holmes came out with a very cogent analysis of the limits to freedom of expression. The relevant words are: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent[i].

The Holmes judgement, for the last hundred years, has become the benchmark for assessing the limits of protest or dissent in a civilised, law-abiding country and society. What India saw in the last few months was outright “mobocracy” on a completely drummed-up excuse. Using a totally warped and distorted interpretation of one of the legislations enacted by Parliament, the protesting forces resorted to mass violence, destruction of public property and blocking of major roads and thoroughfares in the capital and in other parts of the country.

Invariably, the clarion calls for the mobilisation of the protestors on the CAA issue came from the leaders of India’s second-largest religious community, who issued their appeals from their places of worship, as well as from colleges and universities primarily catering to that community. Some of the major political parties in the opposition undoubtedly joined the fray, but the actual ground-work was done by the mullahs in the mosques and the madrasas. The crowd mobilisations and meticulous organisation of protest marches and meetings were the handiwork of this lot. Leaders from avowedly Muslim political parties took up the cause in Parliament, various State Assemblies and in other forums, including the electronic and print media.

This writer has assessed these recent events in one of his essays in this portal two months ago[ii]. He made no bones in this study and categorically asserted that the recent events were most ominous and were pointing to an existential threat for the country and its ancient civilisation. The prevailing ambience and circumstances did not pertain to the usual tugs and pressures that are normally present in any democratic system. The entire ball-game was changing relentlessly.

It is most surprising that these basic home-truths are not clearly evident to many commentators on the anti-CAA events who talk about the right to protest etc. Even more worrying is that these observers certainly do not appreciate the fact that India, a new country but an ancient civilisation, has major fault-lines and fissures in its body politic. These structural weaknesses can all be traced back to the two centuries of British colonial rule and the earlier seven to eight centuries of Muslim-Mughal hegemony. Therefore, the Indian Republic, with its less-than-robust framework has to be much more careful about its security and survival than older and established democracies in other parts of the world.

The other critical factor that many observers forget or choose to overlook is that India’s geographical perimeters are also most porous and unsafe. No other major country has as few safe neighbours as we have. In the second decade of the twenty-first century, India has to contend with a Pakistan whose raison d’etre is the destruction and elimination of India. While the rest of the world is aware of Pakistan’s pathological obsession with India, combined with a visceral hatred of us, many Indians display a puerile trust in our western neighbour. Admittedly, the Congress and its allies, who have banked on the Indian Muslim vote bank for decades, can be logically expected to display a soft corner for our western neighbour.

The same leeway cannot be extended to our “intellectuals” and academics who have a bizarre empathy for Pakistan and its demented Islamism. The Indian left, whose intellectual havens in the erstwhile Soviet Union and China have disappeared ignominiously, are the prime culprits. Add to that are the motley groups of Westernised desis who have rightly been labelled as Macaulay fans. This bunch has such a deep inferiority complex vis-à-vis the West, particularly our erstwhile British rulers, that they never lose any opportunity to run down our glorious patrimony and heritage.

I am not saying with complete certainty that all defenders of the current anti – CAA upsurge belong to this group of privileged Macaulayites. However, when we have instances of sitting judges of the higher courts raising important issues outside the court rooms, we have to take a deep breath. Readers of this Forum have a broad understanding of our higher judiciary but many of them are not au fait with some aspects of this institution.

In two of my earlier essays penned recently (in 2017), I have given details about the exalted and “untouchable” status of the country’s higher judiciary. I have spelt out how the Supreme Court has extended to its judges and the judges in the High Courts an immunity that is almost complete and unquestioned. Furthermore, it has also conferred upon itself the exclusive right to nominate its members without any say by the legislature at all. This is almost unheard of in other parliamentary democracies with whom India shares the high table in the global arena[iii], [iv].

Simultaneously, our apex court has, most unfortunately, reduced the legal protection that our armed forces enjoyed, when carrying out their anti-insurgency operations in the most hostile terrains. The country’s Parliament, realising the terrible dangers faced by our warriors and soldiers in the process of combating terrorism of the most dangerous variety, had enacted the Armed Forces Special Powers Act (AFSPA). I had occasion to study in 2018 yet another example of “over-reach” by our apex court when it effectively took away an absolutely vital protection that our soldiers surely need most[v].

Therefore, I am obliged at this stage of my essay, to remind my readers that members of our Supreme Court and High Courts enjoy almost total immunity and have quasi-absolute powers of appointments of their fraternity. Surely, anything coming from this quarter must be taken with a huge pinch of salt. After all, Tom Paine, the great defender of liberty and citizens’ rights also said most presciently that a body of men holding themselves accountable to nobody ought not to be trusted by anybody.” The great Molière had said a few centuries before Paine that it is not only what we do, but also what we do not do, for which we are accountable.”

The security risks that India is facing currently are existential. If people in high Constitutional positions are unable to perceive this, we are in serious danger. This country cannot afford bagatelles like open-houses to forces whose sole rationale for existence is the destruction of our venerable Indic civilisation.

To bolster my case about dealing with existential threats with the utmost seriousness and severity, I must remind my readers how Britain dealt with the son of Leopold Amery, who was the Secretary of State for India in Churchill’s war cabinet in the 1940s. Amery, who had delivered the epic speech in 1940 in the House of Commons asking for Neville Chamberlain to resign from his Prime Ministerial post, had the misfortune of having a son John, who worked with the Germans during the war in their propaganda office. After the war, John was arrested, tried for treason and executed. Leopold Amery did not lift a finger to save the errant John. Just for the record, and on a lighter note, Leopold Amery was born in Gorakhpur and could speak Hindi by the time he was three years old.

[i] United States Supreme Court, Schenck v. United States, 1919





Featured Image: Outlook India

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Jay Bhattacharjee

Jay Bhattacharjee is an advisor in corporate laws and finance, based in Delhi. His other areas of interest include socio-political issues and military history. He has been a commentator and columnist from the mid-1990s