By Dr Swati Jindal Garg
American philosopher Howard Zinn said: “Protest beyond the law is not a departure from democracy, it is absolutely essential to it.”
Recent developments in the Indian judiciary have brought to light the glaring fact that India may be turning into a police state. Just like one has not only a legal but also a moral responsibility to obey laws, one also has a moral responsibility to disobey unjust laws. But what if our right to speak, think, act freely and our right to dissent is taken away from us? Will the democracy that is India still continue to exist?
Those who are always politically correct may avoid taking sides, but the truth is that we must always take sides. Neutrality helps only the oppressor and never the victim…silence encourages only the tormentor, never the tormented and it is this silence that becomes cowardice when the occasion demands speaking the whole truth and acting accordingly.
India, the biggest democracy in the world, prides itself on harbouring innumerable communities, religions and castes. Tolerance was, and has been its middle name. The fundamental right to free speech and the secular status of the country have managed to co-exist despite many a tempest. This has only been possible because democracy is about the dialogue, protest is about initiating the dialogue, and freedom of speech is about respecting each other’s dialogue. The true purpose of protest is to provoke a response. The trouble is when some people prefer to address the appropriateness of the protest and not the actual issue. The right to protest is a basic right of the Indian citizen. An individual who breaks a law that his conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law. If there is no debate, there shall be no improvement.
However, there has been a recent trend of lodging multiple FIRs against individuals by different people in various parts of the country in order to ensure that they remain in jail and keep running for justice. This is especially in matters pertaining to group and communal ideologies and has created a situation where the individual is made to run from one state to another and from one court to the next.
Recent comments of the apex court have indicated that the time has come to develop a better mechanism for putting a check on this issue of multiplicity for the same or identical offence. Chief Justice NV Ramana recently marked “urgent” the issues of “hasty and indiscriminate arrests, difficulty in obtaining bail, and prolonged incarceration of under trials”. These comments assume huge significance given recent events.
More and more questions are being raised over the arrests of Mohammad Zubair, co-founder of fact-checking website Alt News, by the police in Delhi and Uttar Pradesh; actor Ketaki Chitale in Maharashtra and suspended BJP spokesperson Nupur Sharma. Sharma was granted interim protection in connection with nine FIRs filed against her in Delhi, Maharashtra, West Bengal and Telangana over her remarks on the Prophet. Zubair was behind bars over a 2018 tweet while Chitale got into trouble over some social media comments that were supposedly against a veteran politician. Speaking at an event in Jaipur in the presence of Union Law Minister Kiren Rijiju and senior judges of the Supreme Court, CJI Ramana even called the process in India’s criminal justice system a “punishment”.
“The challenges are huge. In our criminal justice system, the process is the punishment. From hasty, indiscriminate arrests, to difficulty in obtaining bail, the process leading to the prolonged incarceration of under trials needs urgent attention,” he said in his address. He added: “We need a holistic plan of action to increase the efficiency of the administration of criminal justice. Training and sensitisation of the police and modernisation of the prison system is one facet of improving the administration of criminal justice.”
His comments may be read in line with a recent call by the Supreme Court to the centre to consider framing a “Bail Act” to streamline the early release of prisoners. Such comments coming from the CJI himself will have far reaching impact on all cases where the recent trend has changed from “bail not jail” to “send them to jail!”
There have been other instances of this trend. In April, 2020, an FIR was lodged against the owner-editor of Republic Bharat Channel for a broadcast. FIRs were then filed in Maharashtra, Rajasthan, Madhya Pradesh, Telangana, Jharkhand and Jammu and Kashmir. The accused was then constrained to approach the apex court to quash these FIRs.
Then there was the case of TV anchor, Amish Devgan, where several FIRs were lodged against him in Rajasthan, Telangana, Maharashtra and Madhya Pradesh for hosting a programme on June 15, 2020. The first FIR was filed in Ajmer, Rajasthan. He approached the Supreme Court challenging the FIRs and alternatively praying to club these FIRs and transfer them to Ajmer.
The question that arises is whether an individual can be arrested several times for the same offence? As per law, a person cannot be arrested or made to face trial for the same offence as it is barred under Article 20 (2) of the Constitution. The Delhi High Court also recently held that the police cannot lodge five FIRs for same incident in a matter related to the offence of looting and arson during the Delhi riots in 2020. The High Courts of Telangana and Karnataka have also taken the view that multiple FIRs on the same incident are not permissible.
The apex court in various pronouncements has held that even though improved versions of the same incident cannot be a ground for a second FIR, a rival version of the same incident can be permitted. In a nutshell, there is no sure shot mechanism to determine the issue of multiplicity of FIRs except by taking the matter to court, but considering the highly variant views that are being taken by higher courts, the question still remains moot.
In order to combat this problem, the Supreme Court has even asked the centre to propose solutions to tackle this problem of multiplicity and has suggested the establishment of a mechanism similar to the Judicial Panel on Multidistrict Litigation set up in the US. This suggestion seems positive and it seems like the judiciary is quashing opposition by the government head on.
CJI Ramana said: “Political opposition should not translate into hostility, which we have been sadly witnessing these days. These are not signs of a healthy democracy. There used to be mutual respect between the government and opposition. Unfortunately, space for opposition is diminishing.” He went on to say: “Sadly, the country is witnessing a decline in the quality of legislative performance.” Laws are being passed without detailed deliberations and scrutiny, he added.
This stance of the judiciary is highly supportive of the right of an individual to express dissent. A Supreme Court vacation bench recently agreed to hear a petition by TV anchor Rohit Ranjan against whom FIRs were filed for telecasting a misleading video against Congress leader Rahul Gandhi. The Court went one step ahead and granted protection to the TV anchor on his counsel’s submissions that multiple FIRs for the same offence cannot be filed and that there can be no fresh investigation on receipt of every subsequent FIR for the same cognizable offence or the same occurrence or incident.
All said and done, the stance taken by the Supreme Court shows that the voice of dissent will not be suppressed and the winds of change will, for now, be allowed to sweep the country. Mahatma Gandhi’s words loom loud and clear: “You may never know what results come of your actions, but if you do nothing, there will be no results.”
—The writer is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi