The Cost Of Freedom
Two Instructive case studies of dissent from Contemporary India
Article 19 of India’s constitution guarantees the right “to freedom of speech and expression.” However, the constitution also allows the government to limit freedom of expression “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offense.” Yet, in recent years, these limitations, under the apparel of sedition, have been used to curb free speech and to intimidate government critics.
Values that inspired and guided the Indian freedom struggle, and were in turn nurtured by it, formed the foundations of the Indian constitutions. These values were not only influenced by the local affairs but were also guided by world plots. The French and the Russian revolutions planted the notion of Freedom of Speech in the minds of the Constitution-makers. As the legend goes, India adopted the ideas of Freedom of expression as natural rights. Mahatma Gandhi strongly advocated for freedom of speech. “Individual freedom alone can make society progressive. If it is wrested from him, he becomes automation, and society is ruined. No society can possibly be built on a denial of individual freedom. It is contrary to the very nature of man.” [Harijan, 3 February 1942], he said. Long story short: India has been a strong advocate of Freedom Of Speech. And yet, there have been, in recent times, scathing attacks on the same.
According to the-then Union finance minister Arun Jaitley, speaking at the London School of Economics in 2017, there was a need for debate on freedom of speech in India. He was correct, but not in the manner he intended. Since the historic win of the Bhartiya Janta Party (BJP) in the 2014 elections, the debate on the “line between dissent and contempt” has heated up. And therefore, I have decided to present to you two instructive case studies from the very recent times.
The Prashant Bhushan Case
The Supreme Court Of India, on the 31st August, sentenced lawyer and activist Prashant Bhushan to a Re 1 fine in the contempt of court case and said he would be jailed for three months and barred from practicing for three years if he failed to pay this fine by September 15. The court had said in its judgment that it was “showing magnanimity” by not imposing a severe punishment. The quantum of the impact that the decision and Prashant Bhushan himself has is imperceptible. The study of the Prashant Bhushan Case, therefore, is not only interesting but also necessary.
After the complaint of one Mahek Maheshwari, the apex court had taken suo moto cognizance of two of Bhushan’s tweets. The tweets in question were critical of the top court and posted by Bhushan on Twitter on June 27 and June 29. The June 27 tweet said, “When historians in the future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.” The June 29 tweet included a photo of CJI S.A. Bobde riding a Harley Davidson motorcycle, and said, “CJI rides a 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access Justice!”
The bench had held Bhushan guilty of contempt of court on August 14. Justice Arun Mishra, writing for the bench, held that these tweets were not just personal opinions and that they tended to “shake the public confidence in the institution of the judiciary”. The proceedings were criticized widely by multiple former judges of the Supreme Court and High Courts, including Supreme Court Justices. It invited severe backlashes and Prashant was met with public support. Some termed the proceedings as ‘biased’ since Bhushan had been against the ruling regime and more broadly, the ones vested with power and the bench was headed by Justice Mishra, a controversial figure, known for his aligned views with the establishment which were, in turn, the cause of his judgments; while others called it ‘undemocratic’, citing the statement of Attorney General of India, “Bhushan’s tweets seek the improvement of the administration of the justice…Let democracy follow in this case when he has exercised his free speech…It will be tremendously appreciated if the court leaves it to that.”
On August 20, while reserving the suo motu contempt case for order on sentencing, a three-judge Bench led by Justice Mishra gave Mr. Bhushan an opportunity to tender an unconditional apology by August 24. The brave Bhushan refused to apologize saying that an insincere apology for his tweets, which are an expression of his bona fide beliefs, would amount to “contempt of my conscience and of an institution that I hold in the highest esteem”.
The Court, measuring the severity of the situation, restrained its judgments and imposed him with Re 1 fine which he paid the same day. By challenging the apex organization for his individual freedom, Bhushan has initiated a national movement; where hundreds, if not thousands, of people, stand up for democratic principles, for truth and justice, and for Constitutional values.
The motorbike tweet was a figurative tweet on lockdown and had a critical tone for the CJI. Was it necessary for the highest court of India, with the responsibility of upholding the world’s biggest constitution, justify a tweet by a no one with a 108-page judgment? Was it necessary for the court to specify the total number of sittings held and the number of cases filed and heard during the lockdown period? The other tweet is a prediction that will be declared premature or prescient by future historians. It is a statement which some will accept, others may reject; nevertheless, it is his opinion and an opinion far from being “a calculated attack on the very foundation of the institution of the judiciary”.
Let us compare the situation with the United States and the POTUS. POTUS, in different avatars, has been sharply critical of the SCOTUS and vice versa. Yet, neither has the foundation of the court been shaken nor has the attacks destabilized the democracy, even by the most powerful man in the country.
Let’s cut to February 2017. President Donald Trump ordered a travel ban on people from some countries. Resultantly, almost 60,000 visas that had already been granted had to be revoked. Judge James Robart, a United States district judge, passed a temporary restraining order which effectively gave a new lease of life to the visas. Trump tweeted:
“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned.”
The remarks of Bhushan seem inconsequential and futile when juxtaposed with the tweets of the [one of the] most powerful man on Earth. It is interesting to see how the Indian Supreme Court was able to withstand the 70 years of an unstable democracy, yet was shaken by an unknown citizen.
“To criticise a judge fairly, albeit fiercely, is not a crime, but a right,” ~ Dushyant Dave
The Kafeel Khan incident
After spending seven months in prison, Dr. Kafeel Khan was finally released from Mathura jail at midnight on September 1. He was arrested for the first time exactly three years ago on September 2 in the oxygen shortage tragedy at Gorakhpur’s BRD Medical College that led to the deaths of more than a hundred children. He had spent more than six months behind bars before being granted bail at the time. Before the oxygen mishap, Khan lived a normal life. Had it not been for the scandal, Kafeel would not have spent three years in jail.
On the 10th of August, it emerged that a large number of deaths occurred after the hospital’s oxygen supply was cut. At a time when infants were dying and all hell broke loose, Kafeel had emerged as the samaritan. Dr. Kafil became a one-man army for the junior doctors and hospital staff, giving them instructions and showing attendants how to provide artificial respiration to patients. Yet, this was not it. With lives running out with time, he, on his expenses, bought oxygen cylinders from various suppliers across the city.
Khan was hailed as a hero after media outlets reported that he had spent his money to buy oxygen cylinders after the piped supply had been cut, and worked overtime to remedy the situation. Though the state government denied the charge that the children died due to oxygen shortage, various investigations have indicated otherwise. Surprisingly, on 13 August 2017, he was removed as the nodal officer in charge of the encephalitis ward on charges of dereliction of duty and carrying out private practice. The resident doctors association of AIIMS condemned his arrest and said he was being made a scapegoat. And indeed, it was true.
While in prison, Khan wrote a 10-page letter, detailing his version of what transpired when the deaths at BRD Hospital occurred due to the oxygen supply being cut. He claimed that he called the head of the department, the principal and acting principal of BRD, the district magistrate of Gorakhpur, the chief medical superintendent of Gorakhpur and BRD Medical College, and his other colleagues to inform them of the situation. A normal man, a good samaritan, had now been the scapegoat.
In April 2018, the Indian Medical Association (IMA) released a statement in defense of Khan, saying that he had been framed. The secretary of the IMA blamed the state government officials and demanded a high-level probe. Over 200 health professionals and allied activists wrote a letter to Uttar Pradesh chief minister, Yogi Adityanath, demanding justice for Khan. On 25 April, Khan was released on bail after 9 months of imprisonment. The court ruled that there was no evidence of medical negligence on his part.
It had been the government that was now in the fit. Kafeel, after his release, claimed to be made a scapegoat of the Yogi Adityanath government. Khan also regretted that despite their best collective efforts, he and his team could not save those 70 children from death. On June 10, 2018, Khan’s brother was shot by unidentified assailants. Despite receiving three bullets, the brother miraculously survived. After his acquittal in April, Khan had hoped he would be reinstated. In July, he says “People have stopped doing business with my brothers as they think it might upset Yogi Ji. We still have properties worth crores but now we do not have buyers as nobody is willing to do business with my family” After a year of unemployment, his resources drained and he was bankrupt. On 27 September 2019, Khan was acquitted of all charges in relation to the 2017 Gorakhpur Hospital deaths. According to the departmental inquiry report, “The allegations against the accused are insufficient… Therefore it is submitted that the accused officer is not guilty”. The grudge the UP police held against Khan was again evident when Kafeel was arrested under the raiment of the National Security Act, allowing “preventive detention certain cases and for matters connected therewith”. The arrest came as a consequence of his allegedly “provocative” speech made during the anti-Citizenship (Amendment) Act (CAA) protests at the Aligarh Muslim University (AMU) in December 2019. On 1 September 2020, the Allahabad High Court ordered Khan to be released immediately and dropped the charges under the National Security Act 1980 against him. While setting aside the NSA order against Khan, the high court felt that the Aligarh administration had played up half-truths and used selective remarks made by Khan at the AMU anti-CAA rally to issue the order. It is petulant to mention that the police had been working under their political masters, who had been angered by his honesty in the Gorakhpur scandal. Sure enough, the cases against Kafeel had been a filibustering act to prevent concrete searches against the state government.
Let us, for a moment, talk about Kapil Mishra. a politician from the ruling BJP. He had been at the center of the 2020 Delhi Riots. 53 people were killed in the violence while hundreds were injured and property worth hundreds of crores was destroyed. While the action was taken against alleged propagators of violence, Kapil, who had clearly said on record, he and his supporters will take matters into their own hands, when he said, “… we will not listen to the police if roads are not cleared after three days…”, referring to the CAA protests happening on the streets at the synchronous time. The police had clearly bypassed Mishra and other BJP leaders for their incendiary speech. Giving proactive speeches and holding such people under NSA acts or sedition charges is an authorized right available to the government. But it is expected that such rights should only be exercised in rarest of the rarest forms. Considering the present situation, it was a little deliberative on the part of the Uttar Pradesh government to act in such a lawless manner.
The sequence of events does suggest that the whole act had been influenced by some key factors. The languishing arrests of Kafeel may have been motivated by his last name “Khan”. His Muslim status may be a cause of bias against him. Nevertheless, his repeated incarceration is a symbol of suppression of free speech and critic. When the point comes about the safeguarding of fundamental rights against illegal detention under Art 20 and 21 of the constitution, it is established by the court of law that Right under Art 20 and 21 isn’t absolute and falls under reasonable restriction, but such restriction should be fair, just and not arbitrary. That being said, none of the above requisites was followed in the present case.
Dissent, expressed against the state and the institutions of religion, creates a tradition of thinking that would always be available to us as resources. At every historical juncture, the rich vein of dissension thoughts is necessary for the conception of equality. Democracy survives because of dissent. The orthodoxy of political ideologies stands up against dissent; and the battle against then still goes on.
At the same time, we mustn’t forget that we, the citizens of the country, are the organs of symbiosis with Democracy. Both form a self-sustaining ecosystem, where citizens uphold the democracy with their efforts and the rights given, satisfy the inhabitants. It, therefore, becomes our duty to make efforts and terminate any threat that exists to our basic human rights. Cases like Bhushan’s and Khan’s need more spotlight and people a little awareness.
And yet, in the end, the two cases have left us with an entrancing question: What bids to a cost equal to that of Freedom? Is it a single penny, several years of inhumane prison, or perhaps, Death?
The Prashant Bhushan Case:
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1 rupee for a new India
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US Democracy Survives Even When POTUS Attacks SCOTUS But India Can't Handle Prashant Bhushan
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Supreme Court Finds Prashant Bhushan Guilty of Contempt in Tweets Case
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The Kafeel Khan case:
A Single Photograph Was All it Took to Dramatically Alter Dr Kafeel Khan's Life
After spending seven months in prison, Dr Kafeel Khan was finally released from Mathura jail at midnight on September…
The arrest of Kafeel Khan
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