In a purposefully detailed judgment on the grant of bail to a citizen accused under the draconian Prevention of Money Laundering Act, the Supreme Court last week placed the issue in a context fundamental to any evaluation of what defines constitutional democracy.
In upholding the doctrine that bail is the norm and jail the exception even under special laws like PMLA, the court for the first time made an elaboration that goes to the heart of the principle of fundamental rights.
Cutting through the detail, the court underlined that Article 21 of the Constitution which lays down that ‘no citizen shall be deprived of his life or personal liberty” except on the basis of procedures laid down in the law, is the “higher right” and as a constitutional provision supersedes any statutory laws that make the grant of bail difficult to well-nigh impossible.
The judgment explicates the constitutional conditions that must be satisfied before authorities make any claim that section 45 of the PMLA is allegedly open and shut about denying bail to the accused unless they can show that they are innocent.
In characterising “personal liberty” as indispensable to any understanding of democracy, the Supreme Court has elevated the principle of “liberty” to the theoretical pedestal that was first envisaged by John Stuart Mill in his watershed essay of 1859, titled ‘On Liberty.’
The judgement thus recalls the historical fact that “liberty” was the sacrosanct principle in people’s struggles against tyrannical forms of government that seek to subjugate the citizen to autocracy even when such an autocracy be an elected one.
This surely provides an occasion for thinking people to once again visit histories left behind in Europe and elsewhere, even as those histories are sought to be revived by ambitious autocrats under the garb of democracy.
I have often been asked as to what it is that makes the United States of America a democracy, given that great residues of racism and patriarchy mar its social life, and unconscionably predatory inequalities of wealth define its economic life, with political power concentrated in just one man essentially, namely the President.
My answer to that is the absolute right that American citizens have to free expression, unfettered by hurt sentiments, just so long as such free expression is not accompanied by violence or is not instigative of violence.
The prowess of American state institutions to hold state authorities to account with the sort of independence and grit we saw during Trump’s tantrums about the election results of 2020 remains contingent on the reciprocal freedom of citizens to voice views, articulate grievances, challenge iniquities, verbally or in any form of writing, without fear of being punished for free articulation, however inimical to powers-that-be.
Even as Indian citizens and civil society organisation that work to uphold liberty take heart from the Supreme Court’s pronouncement on the PMLA case cited above, it is to be hoped that a day will come when the restrictive stipulations of Article 19(2) on the right to free speech not tainted by violence will likewise come in for a watershed rethink by the top court.
Nothing would help both restore and put on a lasting basis the substance and credibility of Indian democracy as that.
If it is agreed that a citizen unshackled of an undue fear of arbitrary authority and of crony institutional practices alone is the first bedrock of the promise of democracy, then the reform sought here to Article 19(2) may not seem so anti-national.
Badri Raina taught at Delhi University.
This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been updated and republished here. To subscribe to The India Cable, click here.
