Another day, another case where news reports are rife with what appears to be an indiscriminate use of the power to seize materials by the police during an investigation involving allegations under anti-terror laws against journalists. Specifically, personal digital devices in the form of mobile phones and laptops. This is an issue that has been covered on this blog (see here) and elsewhere (see here, here, and here) on many an occasion, and I would encourage anyone interested to take a look at the prior pieces. Not only for reasons of brevity, but because this post is not an argument or critique, but it is a lament.
Where do we start? Perhaps with the idea that the Constitution of India and its guarantee to secure to the people of India a fundamental right to life and personal liberty. Sure, Article 21 says so, but how come it shrivels up at the first instance of conflict with state power each time there is such an encounter between the rights of the citizen and the might of the State? Sure, the Supreme Court says that the state cannot take away the right to life merely on procedure established by law, but how often do courts remember to check for the 'just, fair, and reasonable' element in that procedure when they are required to determine whether an arrest is legal or not? And lets not even get to Parliament, where successive governments have refused to modify the legal regime that suited the British so well while they ran a colonial exploitation enterprise.
Article 21 is not brought to life through judgments delivered three years after a person is first arrested, or even for that matter by fantastic judgments three months after an arrest that release a person from custody. Article 21 is brought to life in that moment when the state comes knocking at your door. It is what enables the citizen to stand fearlessly before the awesome power wielded by a leviathan, with the knowledge that his liberty is secured by a rule of law, no matter what the allegation against me. This guarantee is what ensures the citizen that when accusations are raised against her by the police, there will be a different set of questions being asked of the police as well, demanding harsh justifications into the otherwise inviolable personal liberty of a person.
There is no asterisk at the end of Article 21 which says "not applicable for persons suspected of terrorism, money laundering, or any other crime of your fancy" even as many may well want this. It is not an omission, but a recognition of the fact that more often than not the state will come knocking on the doors of not the dominant many but the inconvenient few. The majesty of the rule of law lies not in its protection of the interests of that dominant majority which sits ensconced in comfortable chairs pointing fingers of blame, but in protecting those who are targeted by that tyranny of the majority.
And yet, in practice, all of the above is lyrical romanticism, and has been so since the formation of the Indian Republic. The law never consistently stood up to defend those who most need defending, either at the hands of the state or at the hands of their neighbours. The state almost always succeeded in securing custodial detentions lasting months if not years by merely raising the sceptre of serious allegations, cowering courts into playing the role of dumb spectators all in the name of investigative requirements; all without the presence of a lawyer. Houses were raided, homes were razed, personal effects indiscriminately taken away without warrants on nothing better than suspicions. Persons languished, or died, in prisons without ever being proven guilty of a crime.
If this invisible asterisk is the true form of Article 21 only revealed when we decide to accept the evidence of our eyes and ears, the asterisks for our civil liberties under Article 19 are much more clearly visible being ingrained in the Constitution itself. It is not the soap box speaker but the lathi charge that more often describes any attempts at pursuing civil liberties in action, reflecting the deep and pervasive sense of fear about the public held by all sections of the state. The public is only one step away from a mob and thus the civil liberties theoretically guaranteed to its members are, well, best left unenforced. Free speech is nice till it stops traffic, basically. Which is why we must create the oxymoronic protest zone in every city, to sanitise the idea of disruption, debate, and dissent from the cityscape and confine it within manageable spaces. It is rather easy to do so with physical bodies using physical force, and only slightly harder with digital bodies if you have the right mix of tough laws and obedient corporations.
Right from the start our courts took a call that it was acceptable for civil liberties to first be lost and only then fought for. That exercising civil liberties should come at a price not for the state but the citizen is a choice that our courts made years ago. A choice which confirmed that the promise of liberty and a culture of justification that the Constitution brought was only ephemeral. A series of choices has brought us to the point where it is not the enjoyment of liberty but the state's power to define its limits that has become the dominant motif to understand the constitutional compact. That is terrifying, depressing, but also liberating, because it reminds us that we can start making different choices to slowly try and recapture that ephemeral promise of liberty.
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