At a time when the integrity of the judicial system is being questioned, recent high courts decision to release Kafeel Khan and Devangana Kalita work to restore the faith
Two orders issued by the two different high courts of the country on September 1 once again show that the courts can still undertake their due responsibility as true defenders of human rights and the constitutional ethos. In one case, the Allahabad High Court ordered the immediate release of Dr Kafeel Khan who spent more than seven months in prison for his public address against CAA and NRC outside the Aligarh Muslim University campus saying the detention of the doctor under the National Security Act (NSA) for his alleged hate speech was bad and unsustainable in the eyes of law.
In the second case, the Delhi High Court granted bail to JNU student Devangana Kalita in one of the Delhi riot cases saying police failed to produce evidence that her speech had triggered riots. The court said that the materials produced in the court by the police showed that Kalita was addressing a peaceful agitation and that was her Fundamental Right.
The February riots of North-East Delhi have been utilised for a witch hunt and many young persons have been arrested for their alleged involvement in the riots though were victims, alleged many human rights groups who carried out the investigations on their own. The observations made by the Delhi High Court in Devangana Kalita case vindicates the observations made by these groups that the police took vindictive actions against selected people while ignoring the role of the people who actually instigated the February riots in NE Delhi.
As regards the order on Dr Kafeel Khan, the Allahabad High Court said that the authorities slapped NSA on Dr Khan on a whim. He did not promote hatred or violence, on the contrary, in his speech, he talked of national integrity and unity and decried any kind of violence. The bench also declared a subsequent extension of the detentions illegal.
Both the orders of two different High Courts have exposed how arbitrarily, the state governments led by the ruling party and the Centre are taking a selective process of victimisation and preparing cases without proper evidence.
The current High Court orders are bright spots in the present period when the highest judicial body of the country is showing cavalier attitude in respect of dealing with hundreds of petitions related to the protection of human rights. In the period of pandemic and lockdown, when the normal activities of the people have been restricted and the underprivileged are fighting hard to maintain their livelihood, the rights including the Fundamental Rights are being ignored.
In contrast to the Supreme Court's hesitance to make the Executive accountable for their actions during the lockdown period, the high courts of different states of Gujarat, Karnataka, Madras, Andhra Pradesh, Orissa and Telangana, amongst others, rose to the occasion and discharged their constitutional role of being the guarantor of fundamental rights of citizens, and acting as a check on executive excess. Out of these, some deserve special attention.
On May 22, 2020, the Gujarat High Court delivered one of the most fascinating judgments relating to COVID-19 and connected issues, wherein the High Court laid down the entire legal structure underpinning the lockdown regulations, ranging from the Constitutional provisions relating to public health; the 'Epidemic Diseases Act, 1897', and the 'Gujarat Epidemic Diseases COVID Regulations, 2020'; 'Disaster Management Act, 2005', the Municipal Corporation provisions, and MHA notifications, amongst others. While highlighting the need for a strong public health care system, and giving a slew of directions to ramp up the same, the High Court came down heavily on the private hospitals who were charging exorbitant fees for treating COVID positive patients.
The Court further nudged the Government to transport migrant workers quickly to their home states, and to provide them with adequate food and shelter, while they were waiting for trains as well as use the State Government buses to transport migrant workers for short distances.
What is common in all the high court orders is an acute awareness of the role of courts in the middle of a pandemic, knowledge about the ground reality, and the humanitarian catastrophe unfolding in the country, and deep compassion for the migrant workers, and disadvantaged class who lost their livelihood, rented accommodation, and even food on the plate. In most cases, the High Courts didn't take the Central/State Government's submissions at face value, asked the right questions, scrutinised the materials submitted, applied the law correctly, and nudged the Executive to do their jobs properly, and in a humane manner.
However, none of these aspects was evident, when the Supreme Court took 'suo moto' cognisance of the 'miseries' of the migrant workers, after eight weeks of the lockdown on May 26, 2020, possibly being shamed by the outrage expressed by many senior lawyers, retired Supreme Court and high court judges about the complete abdication of the Constitutional duty to protect the rights of migrant workers. Accordingly, on May 28, 2020, the Supreme Court passed certain interim directions, i.e., no migrant worker would be charged any fare, either by rail or bus; migrant workers stranded in different places to be provided with free food, and other facilities; Railways/state governments to provide food and water in the train; simplification of the registration process for the transport of migrant workers, and migrant workers who are walking on highways/roads immediately provided food, and transport to their destination.
Despite the interim directions, anyone who followed the court proceedings in the Supreme Court would be dismayed at the way the Solicitor General castigated the journalists and activists who kept on highlighting the inhuman conditions the migrant workers were facing, calling them 'vultures', and 'prophets of doom', while the Apex Court made no attempt to shut down such rants.
Of course, the interim directions are extremely significant, and though highly belated, would smoothen the process of the transportation of the migrant persons.
The High Courts, that way, are acting as the sentinels of the compassionate judiciary, though there are still some cases which require immediate scrutiny. The accused in the Bhima-Koregaon case are in jail for a long time and they expect justice from the Bombay High Court and the Delhi High Court. The High Courts have to vindicate their faith in the constitutional values of free expression.
Views expressed are personal