BY D.C. PATHAK
The episode of legal action against a leading news channel has resulted in the Supreme Court laying down the mandate for civil liberty in the Indian context. Arnab Goswami’s reappearance as the anchor of Republic TV on November 12 — he was freed after eight days of an allegedly illegal arrest — followed an apex court order that, in fact, established three path-breaking benchmarks of how the Indian democracy must run for the future.
First, the political executive enjoying the power of the state cannot misuse it to settle scores with an individual citizen for whatever reasons. Secondly, the coercive arm of the State, the police, is what makes a difference between the right of the citizen and the legality of authority dealing with him or her and that is why there should be zero tolerance towards police misconduct in a democratic dispensation. And finally, the reality of judiciary at the top being the final arbiter of where the state stood in relation to a citizen, is unambiguously reaffirmed in the order.
In the history of the largest democracy of the world there have been moments where the functioning of the State was put under people’s scrutiny and subjected to the higher judiciary’s examination but it is perhaps for the first time that the Supreme Court of India has gone into a case to define the fundamentals on which democratic India would be governed — giving primacy to individual liberty.
Somewhere in the deep, the Republic case has also unravelled the current tussle in the country between the nationalist sentiment and the doctrinaire left-liberal line, unearthed the play of minority politics behind the false narrative of ‘majoritarianism’ and exposed the misuse of police for settling political scores. Democracy here is now going to be tested for whether those who governed a given state will pay a political price for their abuse of power as adjudged by the Supreme Court — just like an individual would face punishment for violating even an ordinary law.
Developments in this regard will point also to whether the present regime at the Centre would firmly uphold the mandate of the Constitution to do the needful against those who grossly misused power, regardless of party politics. In other words, can we say that India would resolve not to allow politicisation of crime or criminalisation of politics any more? The citizenry looks up to the Modi regime to settle this for good.
In a democracy, elections are held on the principle of ‘one man one vote’ and political parties come into power on the strength of their appeal to the people — the governance as such, however, is totally apolitical. The two primary functions of the State are performed without making any distinctions among the people — development in all spheres and ensuring protection of all by giving them the same shield of law. An ‘area’ or a ‘section’ of the population may need special attention but that is provided to all the beneficiaries concerned without discrimination.
Our judiciary is empowered enough to see through any unfair practices — in the case of Arnab Goswami, the Supreme Court not only corrected a wrong but explicitly reminded the High Court concerned that it should have delivered justice. Considering that our high courts function state-wise and the states have different political dispensations in power, this emphasis on the constitutional responsibilities of high courts has come not a day too soon.
The case of Republic TV has thrown up the question whether a desirable equilibrium exists in India amongst the four pillars of democracy — Parliament, political executive headed by the Prime Minister, higher judiciary and the Press. The authority of Supreme Court to adjudicate on the constitutional validity of an Act or Government Policy is well established but the role of media in exercising a check and balance on the governance by voicing public opinion is still a work in progress.
TV channels can have ideological tilts, commercial rivalries and political alignments but they cannot be exempt from the laws on defamation, business malpractices and safeguarding of national security-related ‘protected’ information. The Supreme Court has, in an incisive comment, advised those heading the government to learn to ignore the ‘taunts’ of the media — and not watch a channel if they did not like it — and made it clear that the State cannot be allowed to ‘target an individual’ for voicing a different opinion or fiddle with ‘personal liberty’.
Arnab Goswami’s projections on the functioning of the government might be unpalatable for the rulers but, outside of the recourse to defamation law, they could not justify misuse of power ‘to fix’ a citizen. The Supreme Court, in its observations, counselled the high courts to be more forthright on constitutional matters. The Apex Court has talked of guidelines relating to the functioning of the media in a democratic set-up and put constitutional focus on a subject that had not been tackled with such clarity earlier. It has subsequently asked the Centre to consider setting up a statutory body to regulate TV channels.
Perhaps the most important point of examination at the core of the entire episode of multiple cases registered against Republic TV is the conduct of the police as the instrument of the State in persecuting a citizen at the behest of the latter. It raises the larger question of the nation taking note of the doings of rogue cops and opting for strictest punishment for the same. Registering a cognizable offence and investigating it is a sovereign function of the police station concerned and that is why the Indian Criminal Procedure Code lays down that all senior officers are deemed to be enjoying the powers of SHO in respect of all police stations in their territorial jurisdiction.
India is the only major country which has Indian Police Service as one of the civil services at the national level to provide leadership to the police organisations of the states — to make sure that the only coercive arm of the State in a democracy performed without fear or favour. In the matter of Republic TV, some senior officers ended up giving a totally opposite picture of police functioning — reviving the debate on police reforms. That a description like ‘encounter specialist’ should crop up in our system shows how distortions can get legitimised — the only way you can kill a person is in exercise of the right of self-defence when there is a real and immediate danger to your life from the latter. How to lead a team against an armed bandit is a matter of valour and ability acquired with professional training but the legal parameters around taking down such a person remain unchanged.
It is instructive to note that one of the reasons why Donald Trump lost the Presidential contest in the US was his failure to criticise the white rogue cop who had in public view killed an Afro American after arresting him at Minneapolis. In a democracy, the state misusing the police for putting down a citizen for political motives is a huge black mark and this can cost it dearly. Arnab Goswami’s case becomes a historical marker for democracy because it has also reminded and warned the nation that an ordinary citizen who didn’t have resources could be easily crushed by the State wrongfully wielding its authority. Police reforms in India must include the defining of what constitutes serious police misconduct and create the deterrence of punishment for deviant functionaries. Action under Art 311 of the Constitution in a rare case, where the wilful act of the police officer had the potential of causing social destabilisation, should not be ruled out.
The big takeaways from this case are that political opposition has to be met politically, that the police must be a friend of the law abiding and not the law breakers and that the rulers who wilfully resorted to unlawful means, including misuse of the police machinery against their critics, must pay a price for it. Commission of a cognisable offence must be mandatorily investigated with responsible supervision from the officers above the police station within the prescribed timelines and custodial interrogation must be held within the directive of the judiciary that ‘bail was the rule and jail was an exception’. Misuse of State authority to curb personal liberty is what has to be eliminated since this was the real threat to democracy. Justice Chandrachud’s observation in the Republic TV case that ‘the State governments must realise that if they targeted individuals there was an apex court to protect the liberty of citizens’ has said it all and hopefully the judgement will go a long way in preserving the democratic quality of governance in India.
(The writer is a former Director Intelligence Bureau)
BY D.C. PATHAK