The Facade of Law is melting

Recent developments in the Supreme Court seem to be the beginning of the melting of the façade of India’s legal system, that the common people suspected was wax all along. That the law protects the rich, and only the poor get caught in its net are age-old notions.

When the Supreme Court of India finds time to entertain a case involving quashing of FIRs against one journalist, who is accused of spreading communal hatred through this channel, with his lawyer insisting that this is a case of “one political party targeting a journalist”; while taking months to pass an order on the alleged targeting of numerous journalists in Kashmir and the continuance of suspension of 4G services in the region, it is telling of the new lows that the justice system in India is witnessing.

Let’s keep aside the merits of Mr. Goswami’s case or that of the internet suspension in Kashmir for a moment or their legal intricacies, or the nuances of the arguments of lawyers in these cases. But when some people, especially those who dare to criticize the state, take years, months and even a lifetime to defend themselves of false cases, while those who are mostly seen as supporting the state are heard by the highest court in no time - is it any surprise that the common people seem increasingly disenchanted by the law?

Ask a common person who has gone through the experience of false FIRs against her. Ms. Shamim Modi, a human rights defender who fought for the rights of the tribals and adivasis all her life is the heroine whose tales I grew up listening to. She had approximately 10 serious FIRs of dacoity, loot, kidnapping against her.

Her only crime – she dared to challenge the brokers of law, the politicians, who consider themselves too strong to ever see their own demise from the power corridors. Coming from the small district of Harda, Madhya Pradesh - where the BJP won the state assembly elections in 2008 and then again in 2018 - and challenging the local ruling party candidate is a dare few will accept. Yet Shamim did it over and over again. She contested the first Vidhan Sabha election from Harda in 2003, then the Lok Sabha elections in 2004 from Betul district.

When Shamim Modi was challenging the ruling party candidates in an election, Harda witnessed the biggest rally ever held in 2006, consisting of seventeen thousand tribals and adivasis who turned up at her rally to be counted and to be seen. The town dwellers still reminisce of the day when her rally started from the railway station, till the stadium in Harda and beyond.

If 12 hours of interrogation seems too much for Mr. Arnab Goswami, Shamim had her finger cut, throat and abdomen slit in a house attack when she was in Mumbai in 2009. She has been travelling to Harda ever since, even after her relocation to Mumbai, once every few months for more than 10 years of her life, to defend herself against the false cases.

She reminisces how she wasn’t allowed to meet her lawyer for four days by the police, when she was arrested on a false case of dacoity and loot. She tells me “When they arrested me, I asked them what grounds are you arresting me on? Do you know DK Basu?”

The police officer arresting her called the Superintendent of Police and said “Sir, Shamim is mentioning some DK Basu and says if you know him?”. This is the state of our legal system, with the DK Basu guidelines on custodial interrogation being constantly flouted.

While all the false cases against her, except one, are now discharged, can the legal system repay her the 10 years of her life? In India, the ease of filing false cases, and the slow wheels of the justice delivery system ensures that anyone taking on the State can be silenced using the very legal system that is meant to protect them.

Each case is indisputably to be seen on its own merits, but when the State is pitted against human rights defenders with the latter stripped of all their basic legal rights, one wonders why are different standards applied to different people. Why can’t the approach used by the Supreme Court of extending protection against arrest be used for all people who are intimidated regularly by filing false cases against them? Whether the case against Mr. Arnab Goswami is true or false, has to be seen later, but a common person asks – why doesn’t the speed of justice move at the same rate for everyone else in the country?

After all, how long does it take Arnab Goswami to ‘take care’ of the 16 FIRs against him? While the Supreme Court order is reserved, the Court directed to extend the interim protection against him. Now, it is not my case that Mr. Goswami should meet the same fate that Ms. Modi did. But from a common person’s perspective – nothing explains this inherent persistent discrimination between the ‘powerful’ and the ‘powerless’ in the eyes of the law.

Now if we are indeed concerned about the freedom of the press, since Mr. Goswami is a journalist, one wonders, why is this concern not applied equally? Just last month, Mr. Gowhar Geelani, a journalist from Kashmir, who is slapped with charges under the UAPA, approached the Jammu and Kashmir High Court to quash the FIR against him.

Mr. Geelani had approached the High Court, unlike Mr. Goswami, who has approached the Supreme Court. While in the latter’s case, the Court has extended interim protection, the High Court of J&K not only refused to extend any interim protection to Mr. Geelani, but also sought the government’s response and has fixed May 20 as the next date of hearing.

Both are journalists, but why is ‘chilling of the press’ in the former’s case our concern but not so in the latter’s?

Notably, in Mr. Geelani’s case, he was the third journalist to be booked under UAPA in Kashmir in less than 48 hours time. ‘Freedom of Press’, anyone?

In Mr. Goswami’s case, there were several FIRs filed in different parts of the country, which prompted him to approach the Supreme Court. Unfortunately, this has become a common practice in several cases, where more than one FIR is filed, and sometimes in the most remote places in the country.

The promise of the Constitution makers to ‘We the People’ is that there shall be no discrimination and that everyone will be equal in the eyes of the law. If this is not true, and this discrimination has been perpetuating for ages, then why care to continue selling the falsehood? Why not just tell the truth? It’s always easier, isn’t it?

Does the youth of Kashmir have any less of a right to express their opinion as compared to Mr. Goswami? The youth of Kashmir, who dare raise their voice do not even have the means to do so, with only 2G internet in the state, on the grounds that there are deep concerns with security in the state.

Yet, it is okay for Mr. Goswami to point out everything that’s wrong with the Tablighi Jamaat, without any concerns regarding spreading communal hatred in this country. How does 2 + 2 make 4, from the perspective of the common people who are watching the legal system?

The façade of the law is melting and before it crumbles like a wax house, the Supreme Court needs to take extraordinary measures to restore the faith of the common people in the judiciary. Who in the Supreme Court should do it, since ‘the Court’ is only referred to as a collective? Law, after all, is supposed to be neutral, applied neutrally by the judges, as per perfect theories of interpretation – another façade one would say.

It’s not that common people see those inhabiting the courts as the Pandavas, trapped in the wax house with malicious intent by someone else and that they will eventually escape, thanks to the promise of Dharma. Everyone knows that we are indeed in Kalyug and not Satyug. What worries is that the promise of Dharma – of righteousness of equality, all seem to be washing away with the melting of the façade.

So what should we do – those who still have hope in the promised land? As a friend always reminds in a light hearted manner, “wipe the tear and stop the cry, for sky is the limit if we try”. There remains hope that the Judiciary will set its house in order and lay down some guidelines restoring the diminishing trust in the eyes of the common people, to ensure that one’s size of purse does not decide one’s share of justice.

The author is an Advocate practicing before the Supreme Court of India.