Upholding Civil Liberties in the 21st Century India

Our TRIP intern Samanneeta Chakraborty carried out a study on the civil liberties and role of the judiciary in contemporary times of Indian democracy. This article is an outcome of the internship on “Democracy in 21st Century India: Rise or Decline”.

The Constitution of India was adopted with the aim of establishing a secular, socialist, and democratic republic. Not only that, it envisions to provide its citizens with social, economic, and political justice as well as liberty of thought, faith, and freedom of speech. However, it was only after the 1970s that the judiciary started playing a pivotal role in upholding civil liberty enshrined in our Constitution. The widely quoted Kesavanand Bharati Case of 1973 and the Minerva Mills Case of 1980 are two of the many landmark verdicts given by the Judiciary during this period.

Allahabad High Court Verdict against Indira Gandhi

An Emergency was declared by Indira Gandhi on 25^th June 1975 on the pretext of “internal disturbances”. In 1971 General Elections, Mrs. Gandhi had won the constituency of Rae Bareilly against SSP’s Raj Narain. This was challenged in the Allahabad High Court whereby Raj Narain alleged that she violated the code of conduct as well as utilized bribery to gain her victory. On 12^th June 1975, Indira Gandhi, the sitting Prime Minister of India, was held guilty for manipulation of the electorate which prohibited her from holding an elected office for the next six years. Perhaps, this was the verdict which made Indira contemplate about pushing Indian democracy into its darkest days.

But, the verdict showed quite clearly the strength of the Judiciary to show up strongly against the Head of the Executive if she violated the law of the land. Thereafter, the framework of Public Interest Litigation (PIL) was adopted by the Indian Judiciary which advocated the rights of its citizens, gender justice, accountability of public institutions, and rights of workers. This has widened the sphere of justice, although, in present times, the institution of judiciary seems to have experienced a weakening. In any eventuality, the country does not seem to be in the mood to have an emergency-like situation in the 21st century.

Farm Laws: Violation of Civil Liberties?

The three debated agricultural acts, namely Farmers’ Produce and Trade Commerce (Promotion and Facilitation) Act, 2020 and Farmers’ (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 and the Essential Commodities (Amendment) Act, 2020 have been creating a furore in the country for quite long now.  The Farmers’ Produce and Trade Commerce (Promotion and Facilitation) Act, 2020 permits farmers to trade outside the markets or mandis as notified under Agricultural Produce Marketing Committees (APMCs) with facilitation to online selling. As a result, both intra and inter-state trade can be conducted by farmers outside the government-regulated APMCs. Farmers have been opposing these, earlier as ordinances, and now, as acts on the grounds that their revenues may drop down due to the suspected privatization of the ongoing system. 

Most of the farmers protesting at the Delhi borders are worried that the assured procurement of food grains would be withdrawn, and the conventional mandi system replaced, leaving farmers at the mercy of corporate buyers. 

On the other hand, the Farmers’ (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 allow the farmers to sell their commodities at a pre-agreed price, which is claimed to empower farmers by entering into agreements with agribusinesses, exporters, retailers, etc. It permits agribusinesses to cultivate land on contract as well. These acts have been propounded as pro-farmer in nature, yet it is rather important to evaluate their forthcomings. The discussions around lead to fear that farmers will not be paid at the Minimum Support Price (MSP). Even the states are opposing it as they believe that they will lose out on the market fees which has been enacting as a source of income for projects, such as the construction of roads. Balbir Singh Rajewal, the President of the Bharatiya Kisan Union-Rajewal, commented that in the year 2019-2020, Rs. 3,623 crores was collected as fees for rural development in Punjab. Similarly, Amarjit Singh, a farmer and resident of Patti village stated that these laws can result in a food grain crisis in the country. Most of the farmers protesting at the Delhi borders are worried that the assured procurement of food grains would be withdrawn, and the conventional mandi system replaced, leaving farmers at the mercy of corporate buyers. 

Also Read: Agri Bills: Why are Farmers Protesting even after PM’s Assurance?

The Essential (Commodities) Amendment act does not restrict the stocking of farm produce however, the Government can regulate the supply of some items in situations, such as war or famine. This resonates with the much-talked decision of privatization of railways by the Central Government which has led to agitations by Railway Workers a few weeks ago. Trinamool Congress, Shiromani Akali Dal, DMP, Communist Parties, SP, RJD, and AAP are amongst the various opposition parties that are supporting the protests against these laws with the argument that these are against the interests of the marginal farmers. Shiromani Akali Dal (SAD), an ally of the BJP, voted against the bill and will now decide its course of action with the Bharatiya Janata Party (BJP). Even a Union Minister, Harismat Kaur Badal, belonging to SAD, has resigned as a sign of protest. 

Balbir Singh Rajewal said, “Unfortunately, the image of the Supreme Court is such that people have lost their confidence in the judiciary. The way the former Chief Justice of India accepted the Rajya Sabha seat completely destroyed whatever was even left. Otherwise, if the Supreme Court had taken suo moto notice then these Acts wouldn’t have lasted for even two days.”

The Acts have even been challenged in the courts stating that it had violated Article 14 (equality), 15 (discrimination on the basis of religion, race, caste, sex, and place of birth and 21 (Right to Liberty). The Act seems violating several legalities, including the federal structure of the Union of India. Though agriculture is a subject of the state list, the Union Government defends the legality of these acts citing its powers in the subjects related to “Trade and Commerce” in the concurrent list. However, in an interview with Newslaundry, Balbir Singh Rajewal, chief of the Bharatiya Kisan Union’s Rajewal faction pointed out, “Farmers don’t trade. They have no relation to trade. They market their goods and marketing is again a state subject.”

The apparent mistrust brewing amongst the farmers against the Indian Judiciary can noted from what Mr. Rajewal spoke to Newslaundry in the interview. Balbir Singh Rajewal said, “Unfortunately, the image of the Supreme Court is such that people have lost their confidence in the judiciary. The way the former Chief Justice of India accepted the Rajya Sabha seat completely destroyed whatever was even left. Otherwise, if the Supreme Court had taken suo moto notice then these Acts wouldn’t have lasted for even two days.”

Nonetheless, it was welcoming on the part of Court to not to interfere with the protest, acknowledging the rights of farmers to demonstrate against the government’s agricultural reforms as part of their freedom of speech.

Citizenship Amendment Law: Violation of Civil Liberties?

A citizenship verification process was introduced in 2015, based upon the Supreme Court’s Directive. A National Register of Citizens (NRC) would thereafter be updated which would comprise of those accounted as Indian citizens. To prove this, residents had to provide official documents that demonstrated that they came to India prior to 1971. At least 1.9 million have been excluded. On the other hand, the Citizenship Amendment Act (CAA) appears to discriminate between migrant religious groups in terms of citizenship with some religion put at a clear disadvantage. The United Nations High Commissioner for Human Rights states that it violates human rights, equality, the right to liberty, secularism, and religious freedom.

Also Read: Rolling the Dice of Democracy through Protests

Justice delayed is justice denied!

The police action on ongoing farmers protest against Farm Laws for quite more than a month, earlier use of force on major protests against CAA-NRC for more than 100 days, and many other short duration protests on varied issues are constantly disrupting the harmony in society. With the frequent thrashing of even peaceful protesters in certain instances in the 21^st century, the violation of civil liberties can not be denied on its face. The extraordinary delays in judicial processes for the majority and selectively fast judicial respite to few, leading to many eminent personalities raising their fingers appear to the weakening of the judicial system.

“Bail is a rule, jail is an exception” is a legal doctrine. However, the doctrine increasingly seems to be reserved only for the powerful. Undertrial detention curtails the prisoner’s liberty and erodes the presumption of innocence and, thus must be resorted to in exceptional circumstances.

‘Bail is a rule, jail is an exception’ is a legal doctrine that was laid down by the Supreme Court of India in a landmark judgement of State of Rajasthan vs. Balchand alias Baliya. However, many journalists and activists hardly get the bail as fast as did Mr. Goswami, editor-in-chief of Republic TV, who is widely believed to be highly pro-Central Government. Arnab Goswami’s swift release demonstrated how well the justice system can work for those with power and influence. The doctrine, hence, seems reserved only for the powerful!

Undertrial detention curtails the prisoner’s liberty and erodes the presumption of innocence and, thus must be resorted to in exceptional circumstances.

Another alarm is ringing from the section of press and media engaged in opinionating on various issues faced by the country for creating biases in public on either side. The neutrality of the press and media is inescapable for the good health of the country at large. There is an urgent requirement of serious thinking in different quarters of governance for assessing the situation holistically so that the gradually increasing apparent trust deficit does not widen any further and the nucleating perception of authoritarianism is timely aborted. Any dent on the stated objectives of the preamble of the Indian Constitution directing to secure justice, liberty, equality to all citizens and promote fraternity to maintain unity and integrity of the nation may damage the democratic values irreversibly.

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References. 

1. Farm Bills Passed by Lok Sabha to Prompt Minister to Resign: What These Are and Why are They Protesting. (2020, September 18) Times Now News. Retrieved on 21st September, 2020. https://www.timesnownews.com/business-economy/economy/article/three-farm-bills-passed-in-ls-prompting-a-minister-to-resign-provisions-controversy-explained/654492
2. Patanik, Ila and Roy, Subho (2020, July 3). AMPC Laws Has Shackled Framers, Modi Govt’s Ordinances Makes Them as Free as Other Sectors. The Print. Retrieved on 21st September, 2020. https://theprint.in/ilanomics/apmc-laws-had-shackled-farmers-modi-govts-ordinance-makes-them-as-free-as-other-sectors/453374/
3. Farm Bills Clear Parliament, Know Why Farmers are Unhappy. (2020, September 21). The Logical Indian Crew. Retrieved on 21st September, 2020.  https://thelogicalindian.com/trending/farmers-bill-explained-23859
4. Tur, Jatinder Kaur. ( 2020, September 19) Protesting Punjab Framers say Center’s Bill Will Lead to Corporate Monopoly. Caravan Magazine. Retrieved on 21st September, 2020. https://caravanmagazine.in/agriculture/punjab-farmers-protest-farm-bills
5. Agriculture Bills Passed in Lok Sabha, Farmers Protest: All You Need To Know. ( 2020, September 19). The Hindustan Times. Retrieved on 21st September, 2020. https://www.hindustantimes.com/india-news/agriculture-bills-passed-in-lok-sabha-all-you-need-to-know/story-n7SikWEpLhJCcN8ZiJMZlI.html
6. Sharma, Aman. ( 2020, September 20) SAD to decide on the future course of its alliance with BJP within a week: Naresh Gujral. The Economic Times. Retrieved on 21st September, 2020. https://economictimes.indiatimes.com/news/politics-and-nation/sad-to-decide-on-the-future-course-of-its-alliance-with-bjp-within-a-week-naresh-gujral/articleshow/78221977.cms?from=mdr