The 49 intellectuals and cultural activists who wrote a letter to Prime Minister Narendra Modi, expressing their anguish over lynching incidents, received much more than what they had bargained for when the Bihar Police decided to turn the heat away from them and on to the lawyer who accused them of being ‘traitors’. The lawyer then got a magisterial court to issue prosecution orders against them.
This presented the Opposition another opportunity to further drive home their point that democracy in India was in peril. It also united more activists around the theme to make even louder a noise about what they saw as efforts by the government to curtail civil liberties.
In the process, however, the Prime Minister and his National Democratic Alliance (NDA) government suffered collateral damage in terms of public perception as the contents of the magisterial order shocked the nation. Still worse, it happens at a time when the government is facing pressure, both domestic and international, on Kashmir, where suppression of civil liberties is a highly-contentious issue.
The development throws up several important issues that are yet to engage public attention. The first one, of course, relates to the propriety of police moving to arraign the complainant for an action that has been upheld by the judiciary, irrespective of the level at which the decision has been arrived at. In this particular instance, the case was registered on the instructions of the court of the chief judicial magistrate of Bihar’s Muzaffarpur, who forwarded a complaint filed by advocate Sudhir Kumar Ojha, alleging that the letter written by the ‘accused’ persons was “meant to tarnish the country's image at an international level” and that they have tried to “defame the country and its democratic structure.”
Irrespective of the merit of the decision, which can be challenged in a higher court of law, the vital question that arises is as to how the police can act the way it did. The police not only closed the case, but filed a counter-case against the lawyer, which is against all norms. It suffers from the same defect as the original strictures against the letter written by the intellectuals. The lawyer has the freedom to ask a question and if it is found to be of no substance, his plea can simply be dismissed.
Another equally important point is on holding the Modi government responsible for the botched move. Technically, the offending order has originated in the judiciary and the blame cannot be put at the doors of the executive. So holding the Modi government responsible for the magisterial order would amount to arguing that the courts are subordinate to the executive, which is an outlandish thought. That the Bihar government is run by NDA partners is completely extraneous here.
This should naturally lead to the quality of the judicial decision that has caused the controversy. It would take no great legal genius to see that the case would have failed to stand scrutiny at the higher courts. Already there are questions about the integrity of the functioning of the lower courts in India, which has been engaging the attention of the Supreme Court and other institutions.
In an interesting coincidence, the issue has come up when the Supreme Court has deliberated on the quality of judicial decisions and delivered an important verdict. The gist of the decision is that a judicial officer must not be punished just because she has passed a wrong order.
“To err is human and not one of us, who has held judicial office, can claim that we have never passed a wrong order” a bench comprising Justice Deepak Gupta and Justice Aniruddha Bose observed while quashing all the orders passed against a judicial officer in case involving disciplinary action.
The court also observed that disciplinary action should not be taken unless there is evidence that the wrong orders have been passed for extraneous reasons, and not because of the reasons on the file.
The judicial officer who issued the controversial order against the intellectuals is too low in the judicial hierarchy that it would be naïve to conclude that he had issued the deviant order to be caught on the radars of the powers that be. It may well be a freak case of injudicious decision-making.
K Raveendran is a senior journalist. Views are personal.
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