The 75th anniversary of our Independence is an occasion for celebration and also introspection that does not shirk its conclusions. The ‘Har Ghar Tiranga’ sentiment is a proud reminder of the defining moment in India’s history 75 years ago when the nation found its soul in the freedom of its people. Since then, tireless exertions of the torchbearers of our founding fathers’ vision have catapulted the nation to a leadership role on the global high table in the shaping of a new world.
But even as we rejoice in our significant national achievements in several spheres, the backsliding of democracy is fraught with grave consequences for the future of our republic.
The specter of dysfunctional legislatures driven at will by momentary majorities, a judiciary faltering in the defense of civil liberties and unable to enforce its own edicts, an increasingly pusillanimous media, a bureaucracy tamed to execute without question the will of those in authority, a political class generally discredited for its routine prostitution of power and the venal business elites foretell the story of a flailing democracy. Its ‘lurching retreats’, evidenced in institutional conflicts, politics pandering to the extremes, and a debilitating political discourse laced with animosity, invective, and sophistry, distracted from the nation’s core issues, have stymied a constructive conversation for national renewal.
A pervasive sense of fear generated by unlawful persecutions and bulldozing of justice signals the mortality of law in the ‘shadow of tyranny. Legislative apathy and judicial imprimatur for reversal of a cardinal rule of criminal jurisprudence the presumption of innocence in favor of the accused has dented constitutional justice founded in the sacrosanctity of fair trial and just procedures.
The Supreme Court’s recent validation of the ED’s unfettered powers of investigation, search, seizure, and arrest in Vijay Madan Lal Chaudhary (2022) is a sad reminder of the ADM Jabalpur (1976) moment. Its logic, legalese, and deference to legislative policy mock the Constitution’s libertarian ethic rooted in the history of our founding document. With deference to the distinguished law lords, the judgment has caused the bloom to come off their robes as it negates the court’s counter-majoritarian role in defense of constitutional democracy.
In the saga of several academics, thinkers, journalists, civil society activists, and political dissenters languishing behind bars for months and years without bail, their reputation, privacy, and dignity in tatters speak for themselves. Endless criminal trials that scar the soul and dehumanize the accused even before guilt is established should have awakened the apex court to the imperative of constitutional restraint on the executive’s untrammeled powers.
This is clearly our moment to resurrect the ‘bail, not jail’, principle, which stands buried under the flawed jurisprudential logic of stringent laws that the accused must prove their innocence. Resultantly, despite the court’s welcome affirmation of the libertarian imperative in Arnesh Kumar (2014), Mohammad Zubair and Antil (2022), Sharjeel Imam, Kappan, and several others continue to languish in custody, as do thousands of undertrials and pre-trial detenues.
