In his book The Age Rights (1990), Prof Louis Henkin, a celebrated scholar of international law, had claimed “human rights is the idea of our time, the only political-moral idea that has received universal acceptance”. However, an objective analysis of the situation throughout the world, including India, belies that claim.
This disquieting conclusion flows from a distressing institutional response to the egregious infraction of human rights, raising a profoundly important question on the functioning of our democratic institutions. Repeated abuse of several stringent laws with punitive consequences has resulted from a reversal of the presumption of innocence in favour of the accused, declared by the Supreme Court as a human right. (Bhramajeet Singh Sharma, 2005) Demonstrated arbitrariness in investigative processes and the failure of the Indian State to enact a comprehensive anti-custodial torture law question our willingness to civilise ourselves in the use of State power. Denial of basic human rights to undertrials, poignantly exemplified in the refusal of a sipper to an 80-year-old undertrial priest suffering from Parkinson’s disease and the refusal of jail guards to allow an incarcerated public intellectual access to a pair of spectacles must shame the nation. This, despite Justice V.R. Krishna Iyer’s binding edict in the Sunil Batra case as early as 1978, that fundamental rights “do not part company with the prisoner at the prison gates…” Indiscriminate arrests of citizens on charges of sedition are etched in public memory as a repressive act of State power intended to criminalise dissent. Unconscionable arrests for inter-faith marriages mischievously labelled as “love jihad” have scarred the constitutional conscience. Heart rending sights of a dog nibbling at a dead woman’s body inside a hospital, and the reported beating to death of a dalit worker just because he had served himself a mouthful of food while clearing the leftovers, condemn us irretrievably as a heartless society. Are we then really a people who can claim that they live in the shelter of each other? Despite the Supreme Court’s repeated directives, trials by the media continue to infract the citizens’ right to liberty, fair trial and reputation.
As the highest forum of democracy, Parliament too cannot escape its share of responsibility for our faltering record on human rights. The three controversial agricultural reforms laws affecting the economic condition and dignity of millions of India’s farmers, passed in both Houses of Parliament without any discussion by a voice vote, is a recent illustration. The enactment of often abused “broad” laws without thoughtful deliberation have had grave consequences for the liberty and dignity of citizens.
The offices of the Lokpal, the Central Information Commission and the National Human Rights Commission have remained largely dormant in practice, except for the occasional and unenforced interventions. Our national leaders, captive to personal animosities and dwarfed by timidity in the face of power, remain obsessed with a “manipulative conversation about our future”, with little time to address themselves to the defining challenges of our times. Thus politics, denuded of its larger purpose, thrives on the tyranny of the strong over the weak and is bereft of any inspiring moral appeal.
However, the nation’s greatest regret is that having declared human dignity anchored in deference to human rights as a core constitutional value (Common Cause, 2018), the Supreme Court has failed to lean consistently in favour of individual rights against the State. Given the national context, Chief Justice S.A. Bobde’s recent suggestion of a restricted recourse to Article 32 in bail matters is rather unfortunate and in some ways is a denial of its raison d’etre. Citing with approval Ronald Dworkin’s assertion of a right to individual dignity against the government in Puttaswamy (2017), the court’s recent record in enforcing this right is, at best, mixed.
The continuing incarceration of public intellectuals, political leaders, academics and dissenters, even where the weight of evidence against them is prima facie weak, has regrettably blemished the court’s otherwise sterling record as the sentinel of our fundamental rights. The Supreme Court’s profound pronouncements in Shreya Singhal (2015), Shabnam (2015), Puttaswamy (Supra), Nambi Narayan (2018), Navtej Johar (2018), Anuradha Bhasin (2020) and several earlier decisions notwithstanding, its inability to enforce its own judgments has dented its standing as a designated guardian of constitutional principles. Deferment of its hearing on the Rohingya petitions, the challenge to the Citizenship Amendment Act’s validity and on the abrogation of Articles 370 and 35A of the Constitution, the petitions concerning the plight of the elderly and their right to dignity, a hesitant intervention in aid of the coronavirus migrants and misplaced priorities in the hearing and disposal of cases have added to the blemish.
The need to reclaim a consistent vocabulary of constitutional discourse rooted in intellectual integrity is self-evident. The highest court has itself reminded us that the majesty of courts lies in the objectivity, consistency and wisdom of its judgments, not in the “coercive power of judges, but the deference and respect which is paid to them and their acts from an opinion of their justice and integrity” (Baradakanta Misra, 1974).
Cleary, this is our moment of reckoning. We must acknowledge the truth of a diminished Indian democracy and our collective failures. Hopefully, the process of democratic erosion can be arrested with the citizens’ collective assertion of our core constitutional values. Despite the disappointments, we can take comfort in history’s abiding lesson -- that the ideals of freedom, equality and justice are best secured in the consciousness of an enlightened people and that no one can diminish the appeal of dignity or extinguish the flame of liberty as long as it burns brightly in our hearts. We know that “the history of the world is none other than the progress of consciousness of freedom” and “the arc of the moral universe bends towards justice”. In these testing times, when the centre have ceased to hold, a relentless pursuit of human dignity admits of no bystanders. To recall Thomas Paine’s felicity: “When my country… was on fire about my ears, it was time to stir. It was time for every man to stir.”