Why Denigrate Them as Subordinate or Lower Judiciary?

A recent editorial on the bail granted to a 22-year-old, much-maligned, alleged conspirator and foreign agent, ‘toolkit’ climate activist Disha Ravi in The Indian Express (27 February 2021) says it all. Titled “Thank you”, it begins with a positive summing up: “(Additional sessions) Judge Dharmender Rana's verdict granting bail to Disha Ravi underscores what judiciary can — and should — do today.” It concludes with the hope that “the next time a government wants to come down on the dissenting or protesting citizen, the next time it weaponizes a harsh section of the IPC, and gets the police to do its bidding, State vs Disha A Ravi should be a compass. One hopes it will be.”

Another judgment dated 17th February 2021 to have been heartily welcomed by one and all, from the general public to the victims of silent sexual harassment to women's groups across the globe, is Additional Chief Metropolitan Magistrate Ravinder Kumar Pandey's acquittal of journalist Priya Ramani in a criminal defamation case filed by former editor and Union Minister M. J. Akbar. An editorial in The Indian Express describes it as an empowering judgment, a landmark for women’s rights.

In an opinion piece in The Times of India, renowned journalist Namita Bhandare finds Ramani's acquittal “a victory for all Indian women.” Namita Bhandare goes on to observe: “What was at stake was not just an individual complaint against a powerful former editor or his retaliation with a defamation suit, but an entire ecosystem from the workplace to courts of law. It’s an ecosystem designed by men to protect their own; an ecosystem where sexual abuse is routine since women must know their place; an ecosystem where sexual harassment at work is an ‘open secret’ and those who speak up must be punished.”

Judge Pandey's order and its reasoning have torn up this entire “inviolable” ecosystem of male predators by holding that for a woman victim of sexual harassment, there are no fetters of limitation for putting up her grievance on any platform. Moreover, the Priya Ramani order ruled that the right of the reputation of the complainant cannot be protected at the cost of the right of life and dignity of a woman. Truth is the woman's defence against defamation. The judge accepted Ramani's truth and that of her corroborative witnesses about the incident of sexual harassment at the Oberoi Hotel Bombay in December 1993 when Ramani had gone there to meet Akbar for a job interview. The judge also accepted Ramani's narrative that Akbar is not a man of the “stellar” reputation that he claimed to be. On all these grounds, Priya Ramani was acquitted and M. J. Akbar's criminal defamation case was dismissed.

On the scanner of the recent and not too distant past are two other district court judgments. One of these is ASJ Dharmender Rana's judgment dated 15th February 2021, granting bail to the accused Devilal Burdak and Swaroop Ram, charged with sedition and public mischief, in connection with Facebook posts during the farmers' protest as these charges were false and none of the ingredients of sedition were satisfied. It is in this very judgment that the ASJ calls out the police and the prosecution: “Don't invoke sedition to quieten disquiet.”

Finally, we also refer to a Tis Hazari Court judgment of ASJ Dr Kamani Lau dated 5th January 2020, when she granted bail to Ambedkarite and Dalit activist Bhim Army leader Chandrasekhar Azad for having called for violence by reading the preamble to the Constitution on the steps of the Jama Masjid in Delhi. The judge pointed out in this remarkable judgment that reading the preamble of the Constitution is not an offence and certainly not a call to violence. The judgment was remarkable so far as it quoted Tagore's lines “Where the mind is without fear and the head is held high” to underscore the struggle for the freedom of speech and expression and the right to peaceful protest as fundamental rights which the State cannot take away arbitrarily.

What is common to all the above four remarkable judgments is that all of them are district court judgments. The Constitution of India, operative from 26th January 1950, under Articles 233 to 238, perceived a pyramidical hierarchical structure of its judiciary, with the district court at the base, the High Courts in the middle and the Supreme Court at the apex. The makers of the Constitution thought such a judicial structure fit for a large democracy like India. However, today, 71 years later, as far as the dispensation of justice is concerned, the pyramid appears to have been inverted and the district courts appear to be taking the lead.

Why denigrate these courts by calling them Subordinate or Lower Judiciary? It may be more appropriate to put the different courts at the same level. Because a spate of recent, and not too distant, landmark judgments have emanated from district courts which make citizens proud. Except for the bails for Varavara Rao and Nodeep Kaur passed by the High Courts. The Supreme Court remained by and large disinterested save the judgment of Justices D. Y. Chandrachud and Indira Bannerji dated 11 November 2020 in Arnab Goswami's case which brought Justice Krishna Iyer's dictum "Bail, not jail, is the normal rule" to throbbing life on an everyday basis in the judiciary.

I am suddenly reminded of my own case 36 years ago. I was arrested for writing a joint report on behalf of the Citizens for Democracy on Operation Blue Star, the Army operation against Sikh militants at the Golden Temple at Amritsar. I had been charged with sedition and produced before CMM G. P. Thareja, who released and set me free after hearing Senior Counsel Shanti Bhushan, who, to my surprise, appeared for me in the Tis Hazari district court. This happened despite the fact that the Delhi High Court and the Supreme Court had not allowed my bail applications.

 As I send this article for publication, news trickles in that, as if on cue from the Disha Ravi judgment, the Supreme Court bench headed by Justice Sanjay Kishan Kaul has dismissed a PIL by Rajat Sharma seeking to charge former Chief Minister of Jammu and Kashmir, Farooq Abdullah, with sedition on the same ground taken in the grant of bail to Disha Ravi by a district judge — that disagreement over and dissent from Government policy is not sedition so long as there is no call for violence. It seems to me that the hierarchy and the structure of the judiciary in India are undergoing a tumultuous churning for the dispensation of justice and for the protection of human rights.

The author is an Advocate at the Supreme Court of India and human rights activist.