Attack On JNU : What Explains The Trust Deficit In Constitutional Courts?

Jawaharlal Nehru University, one of the premier institutes in the world which has produced several prominent personalities, including a recent Nobel Laureate and two incumbent Union Ministers, witnessed a brutal attack on students and teachers on Sunday night.

Visuals of masked goons armed with hammers and lathis roaming around in hostels and academic centres with utter impunity went viral in social media, sending shudders down the spine of anyone with a conscience. They attacked students and teachers and vandalized hostel rooms and libraries, without any regard for the sanctity of an academic space. JNUSU leader Aishee Ghosh and JNU professor Sucharita Sen are among those who suffered grevious injuries.

As gathered from numerous reports, it was not a spontaneous 'clash', but a pre-planned systematic attack on targeted students, carried out with the active connivance of the administration. 

The situation throws several questions at the inaction of the Delhi police, who failed to secure the safety of the students from the murderous gang of thugs. Witnesses state that the Delhi police remained mere onlookers while the goons were on their rampage.  The streetlights in the area were turned off and entry of journalists were blocked. The darkness and police inaction created a frightening scene of anarchy and violence. Certain videos suggest that the police had even made way for the easy exit of the attackers.

It is no exaggeration to state that the situation is a horrendous attack on democratic values and rule of law.  Therefore, it is a fit case for the constitutional courts- be it the Supreme Court or the Delhi High Court, both located within 15 kilometers radius from JNU - to take suo moto action.  This is particularly so considering the Supreme Court's precedent of taking suo moto cognizance of police violence in Ram Lila maidan during a protest staged by Baba Ramdev in 2011. By any stretch, the attack in JNU is graver than the Ram Lila Maidan incident, considering the planned violence with the aid of police and administration on young students within an educational campus. 

Yet, there was a conscious campaign among the stakeholders to refrain from approaching the Supreme Court or the Delhi High Court.  

Senior Advocate Indira Jaising had made an appeal in Twitter to send emails to the SC to urge the Chief Justice of India to take suo moto cognizance of the matter. A casual glance at the responses to her tweet will show that the public trust in the Supreme Court has hit the rock bottom.

The reasons for this trust deficit are not difficult to fathom. Recently, the Supreme Court acted with indifference when the issue of police violence in Universities such as JMU, AMU etc in the wake of anti-CAA protest was brought to its notice. When this matter was mentioned on December 16, the bench headed by CJI passed certain oral observations, which indicated a preconceived notion that students were liable for all the violence.

"The court cannot be forced to decide anything only because some people decide to throw stones outside...this court cannot be bullied...law cannot be taken into their hands just because they are students...we will hear and see what can be done only when things cool down, with a calm frame of mind...", CJI Bobde orally remarked.

The Court's casual response was despite the overwhelming reports that the police had intruded into the campuses and unleashed violence on students who were in hostel rooms, libraries and even masjids. There were also reports of police firing in the campus.  It is the burden of the state to explain that use of force by it was legitimate. A one-sided narrative of alleged violence by students cannot dislodge the burden of police to justify their use of force. However no serious intention to hold the police accountable was evident from the Court's casual response.

Next day, the Court asked the petitioners to approach the concerned High Courts. The bench expressed more concern about the buses allegedly burnt during violence than about reports of police violence in campus.

A similar petition was later moved in the Delhi High Court. On  December 19, the High Court issued notices to the petitioners and gave a long adjournment for the matter, by posting it next in February.

While the Courts waited for "things to cool down" and to have a "calm frame of mind", reports of heightened police aggression on protesters started pouring in, especially from Uttar Pradesh. There are mind numbing reports of custodial torture and illegal detention of even minors and elderly people. Twenty five people have lost their lives due to alleged police firings.

While the police were having a free run, the Courts were enjoying their winter vacations. The judicial response has been a far cry from its pro-active approach on Ram Lila incidents in 2011, where liability was fixed on police officers who had exceeded their lawful mandate.

The Supreme Court flinched from action in the case of Patiala House attack on JNU leader Kanhaiya Kumar which happened in February 2016.

In 2017, a bench headed by Justice Gogoi abruptly closed the probe in the case, observing that "we don't want to flog a dead horse back to life".

By condoning 'mob justice' in the Kanhaiya Kumar case, the SC set a dangerous example, by giving an implicit approval for majoritarian violence. The door was left ajar for evil to intrude into the Constitutional space, and to gain strength from time to time to assume monstrous proportions.

It is saddening to see the massive erosion of public confidence in Courts. In a democracy governed by rule of law, citizens should not be having second thoughts about approaching courts to complain against state excesses. 

Before concluding, it is fit to refer to a quote from Ram Lila Incident case.

"The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the Government on any subject of social or national importance. The Government has to respect and, in fact, encourage exercise of such rights. It is the abundant duty of the State to aid the exercise of the right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions. The preventive steps should be founded on actual and prominent threat endangering public order and tranquility, as it may disturb the social order. This delegate power vested in the State has to be exercised with great caution and free from arbitrariness. It must serve the ends of the constitutional rights rather than to subvert them".

One cannot say with firm conviction that such judicial evocations of liberties will translate into meaningful actions.