The Constitution is the mother of all laws in a democracy. Criminal laws are made to ensure the safety and the security of life and property. These constitutionally guaranteed rights to life and liberty of a person can be taken away by the State only by due process of law. Arbitrary power is anathema to the very idea of democracy. India too set out on this path by opting for a democratic polity and adopting the world’s largest Constitution as its guiding spirit. However, over the years, on various pretexts, the State has empowered itself with some laws that give it arbitrary and non-justiciable powers over the life and liberty of the people. These arbitrary powers are sought to be justified on two grounds, 1) national security and 2) territorial integrity. Acts like AFSPA, PSA, ULA(P)A are examples of such laws. The preventive detention powers of the Cr. P. C. too, are not in consonance with the ideals of a true democracy. The framers of the Constitution debated the advisability of empowering the State with such powers in great lengths (Constituent Assembly Debates, 15 September 1949 and on other dates). However, as the very survival of the newly independent country was at stake, they reluctantly agreed to retain these in the statute with the fond hope that as the country gets integrated and the democracy matures, such arbitrary powers will slowly get abolished.
It is our misfortune that, in reality, nothing like that has happened. Instead, the tendency to grab more arbitrary powers by the State is increasing by the day as it has failed to address the basic problems of the largest majority of its peoples; poverty, disease, unemployment, illiteracy and inequality of opportunity. Failure to improve the economy and inability to ensure basic education, primary health and avenues of employment to everyone, made the people take to the streets and demand their rightful place under the sun. This manifested in many forms; demand for separate homelands for each and every community, reservations in government jobs and higher educational institutions on the basis of castes, community, region, and economic status, are some such examples. There are also demands for region-specific special packages, and in few cases like those of the Kashmiris and the various tribes and communities of the northeast, separation and independence. Predictably, the State responded to such demands with force. Armed with its arbitrary powers, it is unleashing the army and the police upon its own people keeping their right to life and liberty in perpetual animation.
The worst example of such abuse of State power is seen in the detention of political persons opposing the government policies that they consider anti-democratic or detrimental to the marginalized groups, like the Dalits, the Adivasis and the tribal groups living in the periphery of our social milieu. To silence the dissenting voices, the State is taking recourse to anti-democratic and draconian laws time and again, in the very short history of our country. Besides the arrests under preventive laws, it has also become quite common for the State to detain the same person again and again by instituting criminal cases one after another denying her right to bail and a fair and speedy trial. It is also a fact that many of these cases are instituted on flimsy grounds and allowed to remain pending for years once the immediate purpose of detaining the person is served. Instances are also seen when years old pending cases are cited as grounds of fresh arrest by linking these to some incident of recent origin and thus misleading the courts.
So far, organs of governance responsible for Acts are the legislatures that make the anti-democratic laws and the executives that wield arbitrary powers by dint of these laws. Let’s now look at how our judiciary is facing up to the twin challenges of the anti-democratic laws and the State’s use of arbitrary powers under these laws. The framers of our Constitution made it abundantly clear that in governance, Rule of Law pervades over the entire field of administration and every organ of the State is regulated by it. The Constitution designed the judiciary as the third pillar of Governance, independent of the legislature and the executive, with exclusive power to satisfy itself that every piece of legislation conforms to this principle both in letter and in spirit. In the landmark case of A.D.M. Jabalpur Vs S. K. Shukla, Justice Khanna observed, ‘Rule of Law is the antithesis of arbitrariness....... Everywhere it is identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of individual liberty and public order.’ It is expected that the judiciary being the guardian of the Constitution and the last resort of peoples rights to life and liberty, will not only strive to maintain that balance but also ensure that laws and regulations that do not align with the postulate of the supremacy of Rule of Law in all circumstances, will be declared ultra vires of the Constitution and removed from the statute book. Is the judiciary performing this onerous task truthfully and sincerely? This will require us to look into the 70 odd years’ judicial history of our democracy.
An elementary reading of this history tells us a different story. It seems the highest judiciary, at least in the seventies of the last century and in recent times, has shown inclination towards upholding the anti-people laws giving credence to the Executive’s pleadings that maintaining public order must take precedence over the rights of the people to life and liberty. This stance of the highest judiciary has emboldened the Executive to arm itself with more arbitrary powers and laws that sanction such powers. This certainly is not the vision of the framers of the Constitution, who gave us our independent judiciary as the third pillar of governance.
However, it was not always like this. The same higher judiciary, in another landmark case, Maneka Gandhi Vs Union of India, had laid down 4 conditions that must be fulfilled before the State can deprive a person of his life and liberty under any law that the State might have enacted:
1. That there must be a law.
2. That the law must provide a procedure.
3. That the procedure must be just, fair and reasonable.
4. That the law must satisfy requirements of Articles 14 & 19 of the Constitution.
Now, it is up to the wisdom of the legal fraternity and the highest judiciary to examine if the above-referred laws do satisfy conditions 2, 3 and 4 at all. In the case of AFSPA and PSA, the procedure prescribed can hardly be called just, fair and reasonable. In what kind of democratic jurisprudence the State is allowed to deprive a person of his life and liberty on the mere wish of an armed force’s member or a civil servant is known only to those who uphold such laws. In-laws like UA(P) Act, the procedure prescribed gives hardly an opportunity to the detainee to fight for his life and liberty from a level playing field. For any lay person, such arbitrary powers of the State looks simply to be anti-democratic and the antithesis of Rule of Law. The role played by our judicial system vis-a-vis these laws, therefore, is very curious and beyond the understanding of all those people who believe in the Constitution and Constitutional guarantees of a person’s life and liberty. Whether the judiciary lives up to the exalted position that the Constitution ordained for it or keep upholding the anti-democratic laws giving the State arbitrary and unbridled powers to take away the life and liberty of a person by arming itself with arbitrary powers, is up to the judiciary itself. The time to call a halt to such arbitrary powers of the State is now; else it may be too late!
(The writer is a retired IPS officer and former Director General, Civil Defence & Home Guards, Assam).