Editorial 1: At 75, constitutional justice and personal liberty
At 75: The Constitution, Personal Liberty, and Constitutional Justice
Context
As India celebrates 75 years of the adoption of its Constitution, it is imperative to critically reflect on the state of personal liberty—a cornerstone of justice under the Indian Constitution. Despite the celebratory mood, the erosion of constitutional values, especially in safeguarding human dignity and personal liberty, demands sober introspection.
Reinstating Dissent as a Constitutional Ethic
Historical Legacy: A.K. Gopalan’s Case
- In the landmark case of A.K. Gopalan vs. State of Madras (1950), the Supreme Court upheld the preventive detention of Gopalan, a communist leader. However, Justice S. Fazl Ali dissented, emphasizing the primacy of personal liberty and the protection of dissent.
- Decades later, the Puttaswamy vs. Union of India (2017) judgment reinstated Fazl Ali’s dissent, effectively declaring the earlier ruling a constitutional error.
Constitutional Ethics and Liberty
- Justice Fazl Ali’s dissent underscored the inseparability of personal liberty from constitutional ethics, challenging the narrow, technical interpretations of fundamental rights.
- The recognition of this dissent by the judiciary highlights a significant moment in the evolution of constitutional justice.
The Role of Article 21: A Pillar of Liberty
- Right to Life and Personal Liberty: Article 21 enshrines the dignity of the individual, a core value that facilitates the holistic evolution of human beings.
- Justice R.F. Nariman’s Observation: In the Puttaswamy judgment, Justice Nariman emphasized that personal liberty and dignity lie at the heart of the Constitution’s framework.
- Ambedkar’s Vision: Dr. B.R. Ambedkar envisioned the Constitution as a dynamic document—workable, flexible, and strong—capable of adapting to contemporary challenges.
- The Preamble as a Guiding Force: The Preamble continues to inspire unity and justice, providing moral direction amid divisive political narratives, such as the fragmented “tukde-tukde” discourse.
Contemporary Challenges to Personal Liberty
Preventive Detention and Arbitrary Arrests
- The proliferation of preventive detention and the denial of fair trials through impunity in anti-terror laws enact rituals of humiliation, undermining the essence of justice.
- Comparative Parallels: In 1950, A.K. Gopalan was detained for challenging constitutional contradictions. Today, dissenters like Umar Khalid, Sharjeel Imam, Gulfisha Fatima, and others face incarceration under similar circumstances for protesting the Citizenship (Amendment) Act (CAA).
Escalation of Detention Practices
- By 2017, preventive detention and prolonged custody without bail became widespread, with state and central laws enabling arbitrary detention with minimal safeguards.
- Punishment by Process: Detention itself has become a form of punishment, with delays in deciding personal liberty cases creating a chilling effect on dissent.
Historical and Contemporary Lessons
A.K. Gopalan’s Struggles
- Memoir and Resilience: In his memoir, In the Cause of the People (1973), Gopalan recounts his repeated arrests under colonial and post-colonial laws.
- Symbol of Resistance: On August 15, 1947, Gopalan celebrated India’s Independence Day in jail, only to be charged with sedition under Section 124A.
- Despite judicial interventions, Gopalan faced continuous incarceration, a reflection of the state’s reluctance to uphold personal liberty.
Contemporary Parallels
- Anti-CAA Resisters: Like Gopalan, anti-CAA protestors have faced prolonged detention, with courts showing limited urgency in addressing their plight.
- Persistence of Colonial Laws: Post-independence laws, such as the Preventive Detention Act, 1950, echo colonial-era practices, restricting liberties despite the promises of justice under the Constitution.
Criminalization of Dissent: A Contradiction in Constitutional Justice
- The criminalization of dissenters under anti-terror laws, as seen in the Bhima Koregaon case and the Delhi riots case, reflects a paradox: while courts occasionally uphold dissent in judgments, these protections often fail to translate into practice.
- The targeting of vulnerable communities, particularly Muslims, highlights the urgent need for judicial intervention in addressing systemic biases and ensuring personal liberty for all citizens.
Reaffirming Constitutional Values: The Way Forward
1. Strengthening Judicial Accountability
- The judiciary must exercise “creative constitutionalism” (a term coined by Upendra Baxi) to address injustices and safeguard personal liberty.
- Proactive Oversight: Constitutional courts must expedite cases involving preventive detention and arbitrary arrests to prevent misuse of power.
2. Addressing the Persistence of Colonial Laws
- A comprehensive review of colonial-era and post-independence detention laws is necessary to align them with constitutional ethics and human rights standards.
3. Protecting Dissent as a Democratic Ethic
- Recognize dissent as a fundamental aspect of democracy, ensuring that protestors and conscientious resisters are not criminalized for challenging state policies.
4. Promoting the Right to Fair Trial
- Strengthen procedural safeguards to prevent detention becoming a tool of punishment.
- Ensure transparency and accountability in the implementation of anti-terror laws.
Conclusion: Upholding Justice at 75
As India marks 75 years of its Constitution, the enduring struggles of dissenters, from A.K. Gopalan to today’s anti-CAA protestors, serve as a stark reminder of the need to uphold personal liberty as the ultimate expression of constitutional justice. Courts must step in to restore dignity and liberty, ensuring that the promises of the Constitution are not reduced to hollow words.
By reaffirming the values of justice, unity, and personal liberty, India can honor the vision of its founding fathers and chart a course for a truly inclusive democracy.
