By Pratap Bhanu Mehta/Indian Express
New Delhi, May 23 – The Indian Supreme Court’s order in State of Haryana vs Ali Khan Mahmudabad ought to send a chill down the spine of those who care for constitutional values.
Their Lordships, mercifully, granted bail to Professor Khan. His arrest is scandalous even by our low standards of civil liberties protection. But the order, even in granting relief, will have the effect of undermining free speech protections.
We are now in a constitutional regime in which even the Court’s philanthropic benevolence in granting bail (and that is what bail has become) lays the groundwork for further oppression.
This is so for a number of reasons – First, the conditions of the order in itself are an unwarranted denial of rights. Khan, an academic, has been asked to surrender his passport and desist from writing. It is a relief that he is not in jail. But, in effect, the SC has already punished him for an uncertain duration, a punishment he does not deserve.
It is hard to imagine that the SC is so naïve as to not understand the way social control is being exercised, and liberty curtailed, through the semblance of procedure. Procedure is very important to law, and properly done, can constitute an essential element of legal safeguard. It is no secret in India that procedure is not a safeguard. It is an ideology behind which the legal profession hides to obscure substantive matters of rights and justice.
It is also no secret that due process is the punishment. It is also no secret that the façade of proceduralism is quite compatible with the exercise of wide discretion, especially amongst judges.
So, when the Court lays down these conditions, under the cover of granting some form of procedural justice, it, in effect, is being mendacious about protecting the basic rights in question. If the condition of bail in a case of a citizen’s arrest, not for a crime, but for exercising their ordinary rights, is onerous, the procedure of protecting that right is also a deterrent to free speech.
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