The Hindu : Opinion / News Analysis : A student march, judicial writ and police violence

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Wednesday, Jul 06, 2005

Opinion

Opinion - News Analysis

A student march, judicial writ and police violence

V.R. Krishna Iyer

The Constitution makes it a fundamental duty to practice humanism and compassion, which binds judges, Ministers and police alike.

SILENCE IS sinful abdication when speech is a solemn obligation, especially when a constitutional outrage, perpetrated by the armed constabulary in lunatic rage and sadistic savagism, creates consternation and baulks moderation. Pusillanimity, wrapped in the pretence of prudence, finds fault with daring to protest peacefully against the Executive even when it tramples upon people's rights. This strong observation is not made in vacuo but in the wake of the brazen police operation, without magisterial presence, of brutal beating, merciless mayhem, tear gas, bullets, and other near-lethal weaponry. Against whom? Girls and boys unarmed. It is mock victory to chase fleeing boys and drag screaming girls lying on the ground. Obstreperous slogan-shouting and marching towards Counselling Centres. Ipso facto it is no crime!

To protest against the commercially motivated, `education-only for-the-rich' process in our pro-socialist, democratic Republic is a duty if you believe in the equal creed of right to life in dignity and educated development. The Court is not the last word in national policy. The discretion to disobey a judgment when, in your soul and sanity you are convinced it is contra-constitutional, is not a new doctrine. The Supreme Court has discussed this proposition, Gandhiji has practiced it, courts have, by over-ruling earlier erroneous precedents, exemplified this.

The right to express dissent, even from court dicta, is a valid facet of Freedom of Expression. (Art.19). Suffer the penalty, if the court itself orders, submit not to khaki savagery. Myopic "brethren" with midget vision, may claim infallibility but right-minded judges, who are in a large majority, agree with the just axiom endorsed by that great U.S. Judge Learned Hand: "I beseech you, in the bowels of Christ, think it possible you may be mistaken." (a quote from Cromwell). Therefore, an unarmed, peaceful protest procession in the land of `salt satyagraha', fast-unto-death and `do or die' is no jural anathema. But if the crowd turns violent, menaces public life in defiance of a specific judicial fiat, that raises different issues not necessarily khaki uniform and lathi charge. Unlike an authoritarian Executive ukase, a judicial command, issued after hearing all affected parties, sans class bias and giving convincing reasons, is, prima facie, the voice of justice.

How did this armed police action get triggered? A few unarmed student marches in three cities were announced. The rumoured justification for deputing the platoons with sanguinary readiness was the sanction allegedly derived from a High Court verdict with vague ratiocination. Judges generally are precise, humane and hold high the parameters of impartial jurisprudence but deviances are not unknown as in other professions. Was this extraordinary suo motu proceeding an angry exception?

Action suo motu is unusual, though in rare cases of grave urgency, national emergency or public crisis, vigilant judicial initiative does, suo motu, originate Public Interest Litigation. Here, however the State did not, nor the University nor parental group, move the court for any peace process or prevention of turbulent procession or other grave injustice. And yet, the busy judges, often delaying delivery of judgments, have serendipitously found curious interest in some news item and so picked up students' marches to counselling stations as a grave and ominous portent justifying the extraordinary constitutional remedy of writ of mandamus or like relief.

I cast no reflection on the judges whom, as a class, I relatively respect and remotely fear, since recently, to their own defensive advantage, some `robed brethren' have discovered a serendipitous Kerala contempt cult — may we call this thesis hitherto unknown innovation which would have startled Atkin, Scrutton, Denning, Frankfurter, Mukherjee and other peers a new entrant into the pharmacopoeia of contempt jurisprudence? It is so stated by these judicial echelons. Supreme Court judges, because they are final — dear Kerala brethren, they are not — may be criticised but High Court judges, because their performances are appealable, cannot be criticised but only appealed against (dear brethren, persons who are parties, not the public at large, have the right of appeal). Curious logic indeed.

Another bizarre innovation: judgments, not judges, are liable to criticism. Freedom of criticism is fundamental subject to democratically drawn restrictions. Do read Judge Jerome Frank: "I am unable to conceive ... that, in a democracy, it can ever be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of manmade institutions... The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts."

Don't misunderstand me, I bow before countless sublime judges who are the structure of the judicature, I salute you as the paramount constitutional statesman. Equally emphatically, let me state my pragmatic conviction that violence in the streets will be chaos in the country. Whatever the name you use such as bandh, hartal, strike or other turmoil. Nevertheless, on rare occasions the nation, the province, or any locality may have to demonstrate its dissent or distress in passive resistance to grave injustice or tragic casualty to the community. The Constitution makes it a fundamental duty to practice humanism and compassion, which binds judges, Ministers and police echelons alike. Even in situations of provocation, the police must adopt humane methods and never excesses, a rule more obeyed in the breach than in the observance.

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