India @ 75 : Promises to keep

The spectre of dysfunctional legislatures driven at will by momentary majorities, a judiciary faltering in the defense of civil liberties and unable to enforce its own edicts, an increasingly pusillanimous media, bureaucracy, tamed to execute without question the will of those in authority, a political class generally discredited for its routine prostitution of power and venal business elites, foretell the story of a flailing democracy. Its "lurching retreats", evidenced in inter-see institutional conflicts, politics pandering to the extremes and a debilitating political discourse laced with animosity, invective, and sophistry, distracted from the nation's core issues have stymied a constructive conversation for national renewal. A pervasive sense of fear generated by unlawful persecutions and bulldozing of justice signals the mortality of law in the "shadow of tyranny". Legislative apathy and judicial imprimatur for reversal of a cardinal rule of criminal jurisprudence - the presumption of innocence in favour of the accused, has dented constitutional justice founded in the sacrosanctity of fair trial and just procedures.

The Supreme Court's recent validation of the ED's unfettered powers of investigation, search, seizure and arrest in Vijay Madan Lal Chaudhary (2022) is a sad reminder of the ADM Jabalpur (1976) moment. Its logic, legalese and deference to legislative policy mocks the Constitution's libertarian ethic rooted in the history of our founding document. With deference to the distinguished law lords, the judgment has caused the bloom to come off their robes, as it negates the Court's counter majoritarian role in defense of constitutional democracy. The saga of several academics, thinkers, journalists, civil society activists and political dissenters languishing behind bars for months and years without bail, their reputation, privacy, and dignity in tatters speaks for itself. Endless criminal trials that scar the soul and dehumanise the accused even before guilt is established, should have awakened the apex Court to the imperative of constitutional restraint on the executive's untrammeled powers. This is clearly our moment to resurrect the 'bail, not jail,' principle, which stands buried under the flawed jurisprudential logic of stringent laws that the accused must prove their innocence. Resultantly, despite the Court's welcome affirmation of the libertarian imperative in Arunesh Kumar (2014), Mohammad Zubair and Antil (2022), Shajeel Imam, Kappan and several others continue to languish in custody, as do thousands of under trials and pre-trial detenus.

The tragedy of unabated custodial torture, incongruity of colonial sedition law in a sovereign country (thankfully suspended for the moment), lynchings, hate crimes, bigotry, infraction of bodily autonomy, the invasion of our shrinking private spaces and a fading sense of compassion challenge the dignitarian philosophy of the Republic. Can Bharat of Bapu's dreams remain indifferent to the sufferings of people who, denied justice and dignity, live with iron in their soul? Can we as a nation, atone for the heart rending killing of a young dalit boy for drinking water from a forbidden pot, the retributive ravishing of women and the hopelessness of destitute children orphaned in social and communal violence? Can the State that deepens past inequities with injustices of the present measure up to the values that inspired our freedom struggle? Must free enterprise yield a value system that privileges wealth and power above all else, as the primary measure for judging the worth of individuals? Our answer to these interrogatories will determine whether we can keep our tryst with destiny.

The Opposition, with its critical role in national politics and charged with the duty to call Government to account for its acts of omission and commission must reflect upon its own inadequacies. Given to compulsive grandstanding, unable to present a coherent political strategy, mired in an elusive search for a unifying leader and an overarching national sentiment that binds the nation, it seems unable to offer a refreshing narrative of national reconstruction. It should know from experience that viewing politics in binaries of good or evil is a questionable understanding of life and its many hues.

It falls upon us to seize the moment, revisit our processes and policies and reject the ugliness that has compromised the nation's moral centre. We are beckoned to restore ideology at the heart of our politics in a move away from the debilitating perversion of political conversation largely limited to compulsive calumnies about adversaries. It is time to conquer our fears, reclaim our freedoms and anchor our politics in honor that values principle over power.

The ultimate salutation to the vision and valor of our freedom fighters would be the nation's unshakable resolve to usher in a new dawn of justice for all.

This piece acknowledges our failings so that these can be addressed. But more importantly, it is about faith in our collective genius to reinforce the values of a civilisation State; about hope inspired by the endless possibilities of a young nation seeking its place in history. While the Tiranga, as symbol of our freedom must fly atop every household, we know that patriotism and nationalism are best located in the vindication of values that it represents. Since the destiny of nations is driven by the "spell of an idea", we must discover our inspiration in a story that binds us together. This must be the story of an idea of India shaped by the history of our freedom movement, that came alive on our founding moment 75 years ago. It is about a vision of liberal, secular and an egalitarian democracy, of a nation rooted in a civilisational ethos that celebrates human dignity, confident of its future and proud of its past.

Ashwani Kumar

Senior Advocate and Former Union Minister for Law and Justice

Views expressed are personal.