Guardians of our own destiny

In 1944, the American judge Learned Hand wrote: ‘Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.’ I have often pondered the meaning of these words. Do judges protect individual liberty at all times or are they dependent on a public and social endorsement of what constitutes liberty?

British rule in India held out the promise of the rule of law, administered by independent judges. While judges of pre-independent India did serve a colonial government, there was a certain sense of fair play in action even in the most tense moments. When Capt. Prem Sehgal was put on trial in the Red Fort along with his comrades in the INA, they faced a possible death sentence. His father Sir Acchru Ram was then a sitting judge of the Lahore High Court, under Chief Justice Arthur Trevor Harries. The father decided to resign his judgeship to coordinate the defence team of lawyers, which would be headed by Bhulabhai Desai. He went with his letter of resignation to the Chief Justice, who asked him to take leave for the duration of the case, rather than resigning. Acchru Ram was thus able to coordinate one of the most important cases of the time; it played a big role in the subsequent British decision to grant Indian independence. The question we must ask today, in the ‘Amrit Mahotsav’ of India’s independence, is whether we have men and women of the same standard of fairness as custodians of the liberty of Indian citizens.

On the 75th anniversary of India’s independence from British rule, the nation also needs to ask: how free are we as citizens of an independent country? While the great task accomplished by our forefathers was independence from foreign rule, the greater task of securing within India, for all its citizens, liberty of thought, expression, belief, faith and worship—a promise made in the Preamble—is unfinished and growing. As Kanhaiya Kumar correctly pointed out, freedom within India (Bharat mein azadi) and freedom from India (Bharat se azadi) are two different things. Securing the first is a patriotic duty, which is deliberately being conflated with the second. In recent years, Indians have been lectured that there are no rights without duties. This formulation absolves rulers of their duty to ensure the rights of citizens. In a polity that tends to deify individual politicians, dissent has become anti-national and an insistence on individual fundamental rights is seen as wronging the collective will.

After the recent judgment of the Supreme Court in the money-laundering cases, the Indian citizen in independent India may arguably have fewer rights than an Indian subject of George V, King of England and Emperor of India. In the PMLA case, the Supreme Court of India has upheld a law that allows an officer of the Enforcement Directorate to arrest a citizen for non-violent economic offences, not provide him a copy of the document detailing the accusations against him, attach his properties and deny him bail during the pendency of a potentially interminable trial. The officer is even allowed to record statements from the detained person and use such statements in evidence. Such statements to a policeman are not admissible in normal law. Yet the Supreme Court today has upheld draconian powers in the Executive at the cost of the citizen’s liberty.

India has maintained independence from foreign powers but assured no real freedom for its citizens. The police structure designed for the preservation of a colonial empire still underpins an electoral democracy. In his last speech to the constituent assembly, BR Ambedkar had urged Indian citizens to eschew agitations and rely solely on constitutional means, to not lay citizens’ liberties at the feet of great men and to have a social democracy as the foundation of its political democracy.

All three warnings have been ignored. At 75, India is a highly unequal society that has allowed its rulers autocratic powers, endorsed by electoral majorities. An occasional street agitation may gather enough momentum to force the reversal of an unpopular political decision. Public investment in democratic conduct is limited to voting; there’s no real appetite to keep up a civilian vigil, to keep demanding accountability. India’s institutions offer little by way of checks and balances, with key personnel often careerist time-servers. Unless there is a massive renewal of democratic vows by Indians at all levels, we might end up with independence without liberty. Dr Ambedkar also told us: ‘… independence has thrown on us great responsibilities. By [gaining] independence, we have lost the excuse of blaming the British for anything going wrong. Hereafter, if things go wrong, we will have nobody to blame. Except ourselves.’ It’s time every Indian citizen rose to defend India’s tryst with destiny.

(The author is a senior advocate of the Supreme Court of India)

(This article was first published in the National Herald newspaper on Sunday.)