Trial courts need to act as first line of defence

A recent order passed by additional sessions judge Arul Varma on February 4 is an excellent illustration of how trial courts can serve as that first line of defence

The great civil rights lawyer KG Kannabiran once called the trial courts “the first line of defence” for the protection of the individual’s fundamental rights, a sentiment echoed more recently by the Chief Justice of India, DY Chandrachud. While the high courts and the Supreme Court issue pronouncements on the scope and nature of constitutional rights, it is the trial courts that have the task of making those rights a reality, because it is here that questions around police remand, judicial custody, bail, and framing of charges — all of which directly impact an individual’s personal liberty — are first decided.

A person may join a peaceful protest, which might later turn violent. To then hold this person liable for those acts of violence would amount to criminalising protest itself (AP)

In that context, the order passed by additional sessions judge Arul Varma on February 4 is an excellent illustration of how trial courts can serve as that first line of defence. The case was about a protest that had taken place at Jamia Millia Islamia on December 13, 2019, as part of the protests against the-then Citizenship Amendment Bill, and had later turned violent, with the alleged use of stones and teargas. The police arrested 12 individuals and charged them with various offences, such as being part of an unlawful assembly, a conspiracy, destruction of public property, and so on.

The problem, however, was that with respect to 11 out of the 12 accused, there was no evidence that any of them had engaged in any overt act of violence or illegality. The police case against them — as the judge succinctly noted — was that because they were present at the protest, and that certain elements of the protest turned violent, these accused were vicariously liable for those acts of violence as well.

In other words, therefore, there were gaps in the police’s case, and the police invited the court to fill in those gaps through assumptions and inferences; namely, that one’s presence at a protest necessarily means that one has a common object with everyone else present there, and that therefore, one is responsible for any acts of law-breaking that might subsequently occur.

However, as justice Varma correctly noted, such an interpretation would dissolve the line between constitutionally authorised dissent and constitutionally prohibited insurrection.

As everyone knows, protests are fluid and unpredictable events. A person may join a peaceful and lawful protest, which might — at a later point — turn violent because of the actions of a few individuals. To then hold this person liable — without any proof — for those acts of violence would effectively amount to criminalising protest itself: After all, no one person can exercise control over what other, unknown people do in the course of a protest.

For these reasons, justice Varma insisted that there would have to be some overt act linking the accused with the violence, and some tangible evidence to demonstrate a common object of committing an illegality, or a conspiracy. This insistence on the specifics is crucial, as without it, individuals can be jailed, or proceeded against, on the basis of surmises and presuppositions. In this case, as the police could not produce evidence, or show any overt acts, the court decided that there were no sufficient grounds to proceed further with the case, and discharged the 11 accused.

In concluding the case, the court made a further, crucial observation; it noted that where two interpretations were possible, it was the duty of the court — as the protector of fundamental rights — to lean in favour of the accused/individual, as there was an “ubiquitous power disparity” between the State and the individual. This is a salutary principle that — unfortunately — is honoured more in the breach than in the observance. Our Constitution and our laws seek to mitigate the power imbalance between the State and the individual by erecting a wall of protection around the individual, through constitutional rights and procedural safeguards. The role of the court — as the protector of fundamental rights — is to keep those walls intact, and prevent incursions and breaches from State authorities. This it can do by subjecting State action to rigorous scrutiny, and ensuring that constitutional rights and safeguards are given their full amplitude, and not by filling in the gaps in the case of the State.

Thus, the judge’s clear and principled stance on protests, on the difference between dissent and insurrection and the necessity to protect the former, and the role of the courts in mitigating the power disparity between the State and the individual, do full justice to the task of trial courts as the first line of defence for the individual against the State. It is to be hoped that these principles become a part of the common grammar that courts utilise and invoke across the country.

Gautam Bhatia is a Delhi-based advocateThe views expressed are personal.