It is deeply troubling that the courts are giving government benefit of doubt from sedition to habeas corpus cases
A Delhi High Court bench giving four-week breather on Thursday to the police on the issue of registration of FIRs against BJP leaders and others for making hate speeches in the run up to the communal violence in the capital amounts to stepping back from the urgency in such matters when the same court wanted immediate action a day earlier. This also amounts to shying away from the responsibility of the court on such issues when there was an urgent need to book the hate mongering leaders for their acts of omission and commission which stoked the communal violence during the past few days before the issue was listed before the Delhi High Court. It is interesting to note that late on Wednesday, a bench headed by Justice S Muralidhar had questioned the conduct of Delhi police, made it to listen to the video clips of hate speeches, ordered that a decision on FIRs be taken by the next evening. It is unfortunate that the second bench, headed by Chief Justice D N Patel, after Justice Muralidhar’s transfer to another court was affected by a late-night notification, accepted the government argument that immediately lodging FIRs on hate speech was not conducive to restoration of normalcy.

The court letting up pressure on the government even as the consequences of the mobilisation of hate and fear take a mounting toll in the city, is not only deeply troubling but also shocking for the reason that it may shatter the confidence of the people in the working of the judicial institutions. What is more frightening is that it appears to be part of a building pattern. In too many crucial cases that involve a face-off between government and citizen, on questions of the fundamental rights and liberties of the individual and their protection from arbitrary, whimsical or malevolent transgression by the state, the court has been seen to see things from the government’s point of view. Over and over again, such an action of the court has given the government time, and the benefit of the doubt.

Apart from this decision, the courts have shown similar lack of alacrity on habeas corpus petition after the detentions by the government of Kashmiri politicians, business leaders, lawyers and journalists after the August 5 decision, to take another instance, amid an information blackout. This, despite the fact that they concern the most important of all rights, individual liberty, guaranteed under the Constitution of India. And inspite of the reality that an adjournment in such a petition effectively extends the detention without determining its legality. The rash of sedition cases being filed against individuals on flimsy grounds hold up the similar dismal pattern. Even though the SC has underlined that while ordering an arrest for sedition, a magistrate must satisfy that there is clear and immediate incitement to violence, it has done little to enforce its own directions. It was only in the recent past that, a 19-year-old student, Amulya Leona Noronha, was sent to judicial custody for two weeks in Bengaluru after Section 124A was slapped on her for mere sloganeering.

Across Indian states, in the 25 sedition arrests since CAA protests began, analysed so far, remand orders by magistrates do not ask questions, nor state reasons. It is in this context that a Supreme Court justice’s effusive praise in public of the Prime Minister as a ‘versatile genius’ and ‘internationally acclaimed visionary’ blurs the inviolate line that should mark out the questioning distance between the judiciary and the executive, so necessary for the former’s independence. At a time when the political executive wields and sometimes weaponises a large mandate and countervailing institutions are under strain, the independence of the judiciary has never looked more indispensable. For, it is the judiciary which has been the custodian of constitutional principles and values, the only protection the citizens, especially the powerless and the defenceless, have against the powers that be. That needs underlining, irrespective of any prejudice to powers and protection of the citizens of the country.