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Courts are the last haven; they should not abdicate their call


Amidst the Covid crisis,  not only has the economy,  democratic institutions and federal set-up lost their strength,  but even the judiciary, which is bound to protect the citizen's rights, has suffered damage,  as indicated by recent events.   The most recent example of this loss of strength is the denial of bail for a third time for the student of Jamia Millioa Delhi,  Safoora Zargar. 

It is once again becoming clear that the Delhi police has no let or hindrance to clamp down on different civil rights activists and that no judicial review will pose an obstacle before them.   When the people plainly see the police filing cases under harsh provisions against the arrested,  and when bail is obtained on one case,  another charge is promptly filed in order to arest them again,  the courts do not see beyond the executive's version based on the letter of the law.  UAPA (Unlawful Acts Prevention Act) is invoked to deny bail; the courts say bail cannot be granted because UAPA is slapped.  But then unfortunately there is no review on the question whether the case before the court actually would warrant the use of UAPA.

Even when there was no provision for denying bail,  bail was denied to Safoora solely on the basis of the provisions of UAPA,  by the Patiala House court,  which itself had pointed out that the prosecution failed to establish that Safoora had committed an offence attracting UAPA.   This contradiction arose when the court accepted the government averment that under UAPA Sec 43 D(5),  couts do not have the power to grant bail.  But the court did not check whether that section would apply in this case.  Legal experts assert that it was not applicable.  Although it was pleaded that Safoora was pregnant, there was a risk of pregnancy being aborted and that in the peculiar Covid situation she was in particular hazard,  the court was heard ratifying the police contention with a comment, "When you choose to play with embers, you cannot blame the wind to have carried the spark a bit too far and spread the fire".

India's judiciary is not an 'executive judiciary' that clears the hurdles before the executive.  It is instead a 'constitutional judiciary' that scrutinises its policies, acts and inaction and corrects them.  But for the last few months,  the cases around CAA and Jammu & Kashmir issues have been giving hints that such a constitution-based review is not taking place;  even habeas corpus peittions are being dismissed as irrelevant.  It is the same trend that is seen now during the Covid situation.  The Supreme Court had the powers to examine suo motu the sudden delaration of lockdown leading to the tragic circumstances of lakhs of labourers starving and walking for days.  But,  not only did the Supreme Court decline to do that,  it did not even seriously consider the petitions highlighting the tragedy of  labour migrations.

The court accepted without demur the central government's contention that people migrated due to the panic created by fake news.  Four days later, when the Centre informed that all labourers were in shelter homes and not a single labourer was walking on the road,  the court believed that too.   When the Centre submitted that 6 lakh people were in rescue camps and 22 lakh were provided with food,   a question should have been raised 'What about the rest?".   The query by the chief justice in response to a petition filed by Harsh Mander for delivering cash to the labourers,  was why money should be given when food was already provided.  When Harsh Mander produced a report by voluntary organisations that labourers did not have access to even primary amenities,  the court took the position that it could not go by reports of organisations.  The reponse by the court to a petition by Jagdeep Chhokar for transport facilities was that the court could not intervene in such matters.  Susequently,  it was when human beings started being run over by trains and dying out of hunger,  and news reports could no more be ignored, that the Supreme Court stopped going by the Centre's version and decided to intervene suo motu.  But by that time precious two months were lost.

Senior lawyer Dushyant Dave comments that judges should not sit in ivory towers closing eyes on the sufferings of citizens.  Justice AP Shah laments that the Supreme Court miserably failed in protecting the fundamental rights of the citizens.  Lawyer Mihir Desai points out that the judiciary is getting alienated from social realities.  Senior lawyer Sanjay Hegde suggests that it is harmful for the credibility of the judiciary to have an executive mind-set more than what the executive arm itself has.  At least from now on,  the judiciary should step in to ensure the constitutional rights of the citizens of the country.  For the oxygen of the judiciary consists in the trust of the people,  not of the government.

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