I was stuck in a traffic jam when I heard of Father Stan Swamy’s death on the radio. As a lawyer representing UAPA accused in trial courts, this news made me numb. When he was placed on ventilator support, a day earlier, activists planned a campaign for his release and the question before them was whom to address the campaign letter — the Home Minister, Judiciary, or any other authority. The fact that in the last nine months none of the authorities considered releasing Father Stan speaks volumes about the institutional collapse in India, for there is not a single institution where one can hope that appeals and cries for humanity would be heard.
While there were and will always be a few good men in these Constitutional Courts, torch-bearers of liberty, justice, and rule of law, yet these courts have miserably failed at securing the liberty of an octogenarian struggling with multiple health conditions. On 06.07.2021, the records shall reflect that how in failing Father Stan, the Indian judiciary failed the nation.
Father Stan spent almost nine months in custody during which time the 84-year-old tribal rights activist had to file applications for a straw and stripper which was kept pending for weeks together. He had to move courts for getting medical treatment during his custody. His bail applications were either dismissed or kept pending.
Philosopher and political theorist Judith Shklar in her seminal work ‘The Faces of Injustice’ formulates injustice as not only the deliberate acts of cruelty or unfairness but also the indifference to such acts. Where should the sufferings and death of Father Stan be categorised? As a deliberate cruel act of unfairness of the Constitutional Courts in India or as indifference to such an act?
Swamy was among 16 renowned activists, academics and lawyers, who were charged under a draconian anti-terror law in connection with the Bhima Koregaon case (BKC). Swamy was the oldest person to be accused of terrorism in India. Mary Lawlor, the U.N. Special Rapporteur on Human Rights Defenders, has said that Swamy was arrested on false charges of terrorism. US-Based digital forensics firm Arsenal Consulting has said that evidence has been planted in the laptops of two other accused.
Bail applications of various accused including Father Stan were either denied or were kept pending. There are obvious flaws and reasons in the UAPA which render it unacceptable to exist in the statute books. However, the shocking part is absolute abandonment of the principles of the Constitution through which these courts come into existence and are run.
At this point of time, I am convinced that letters of law do not carry the significance of the law intended in them. For I refuse to believe that the erudite, elite, highly educated, and well-versed judges of the Constitutional Courts cannot fathom the ‘spirit of the law’, which British legal philosopher H.L.A. Hart termed it the inner morality of the law.
With FIRs and chargesheets flimsier than masala Bollywood flicks, it becomes tragically funny to believe that at least two and half dozen scholars, activists, members of peoples’ movements, social workers, teachers, and students are in jail. A month ago, Mr. Mahavir Narwal passed away while waiting for his daughter to be released on bail in the Delhi Riots Conspiracy (DRC), the second most famous UAPA case in recent years.
For young law students and lawyers like me both the BKC and DRC are going to be the cases which will decide the ways and manners in which we would understand, respect, and use the law. And it is worrisome that these two cases do not raise the standards of law practice in courtrooms.
Let me explain.
Young law students and fresh out of law school lawyers have been taught procedure and law which is supposed to be followed and expect to see it happening in courts. However, DRC and BKC are cases where even the most fundamental aspects of procedural and substantive law have been turned on its head in a callous and cavalier manner.
Institutional collapse though is not limited to Constitutional Courts but it is more discernible in Constitutional Courts for there is a certain sense of faith in these Courts.
The CJI, while delivering the 17th Justice P D Desai Memorial Lecture, said, “The entire world is facing an unprecedented crisis in the form of Covid-19. At this juncture, we necessarily have to pause and ask ourselves as to what extent we have used the Rule of Law to ensure protection to, and welfare of all of our people. I do not intend to provide an evaluation of the same. Both my office and my temperament prevent me from doing so. But I began to feel that this pandemic might yet be a mere curtain raiser to much larger crises in the decades to come. Surely we must at least begin the process of analysing what we did right and where we went wrong.”
This remark by the CJI — At this juncture, we necessarily have to pause and ask ourselves as to what extent we have used the Rule of Law to ensure protection to, and welfare of all of our people — should be reassuring, but instead it saddens one even further because we no longer are able to find solace in the words and remarks of our Hon’ble Justices. Liberty, equality, rule of law, and justice now seem to be nothing more than symbols and syntaxes strung together to embellish the lifeless buildings called courtrooms.
Ritesh Dubey is a defense attorney and pursuing a PhD from Delhi University. His research topic is the language of Article 14 of the Indian Constitution. The views expressed in this opinion piece are those of the author.