This talk was delivered as part of the 5th annual History for Peace conference, The Idea of the Indian Constitution, in July 2019.

I would like to begin with a reference to the Emergency of 1975, when issues such as freedom of speech and free expression surfaced as issues more crucial than before because the Constitution was being contradicted by the actions of the government. The question that was being asked was whether the executive was replacing the judiciary. The actions were largely preventive detention orders and press censorship. Those critical of the Emergency could be picked up for detention, and that meant arrest and jail. Being critical of the Emergency amounted to being critical of the actions of government. Such criticism was not called anti-national but it was sufficient for an arrest and jail.

But as Justice Shah forcefully argued in one of his judgements, a détenu is not a convict. This is a basic difference that should not be forgotten. He added that the power to detain should not be taken as including the power to punish those offences that the executive authority believes to have been committed by a citizen. The implication obviously being that the proof of the offences has to be established. Until this is done, the restrictions on such a détenu should be minimal. It was also argued that the writ of habeas corpus meant that the détenu had to be present at every hearing.

Those were also the days when there were lawyers who refused to take up the defence of government action, particularly in cases involving civil liberties. These decisions were immensely problematic and frighteningly close to the bone, as they still are.If Article 21 were to be suspended, then the right to life and liberty, so central to the Constitution and to Indian citizens, would also be suspended. Recourse was sometimes taken to quoting precedent as legal proceedings so often do. These were judgments of the British Raj, as for instance, when such rights were suspended during the Second World War. The argument was that the circumstances of war did not allow freedom.

To go back a bit further, in the early years of Independence—in 1950—there were a couple of classic cases upholding the freedom of expression and the freedom of the press. A.K.Gopalan of the Communist Party was detained without being told what the charges were against him. Further charges were added while he was in prison, and he was given no opportunity to defend himself in court. The other case was Romesh Thapar vs the State of Madras. The attempt there was to ban the fortnightly publication, Cross Roads for publishing articles critical of the government.

In both cases, the trials were concluded within reasonable time, a year or not much more. Coincidentally, both involved the silencing of left-wing politics. The second case, involving the ban on Cross Roads, was heard together with the ban on the RSS publication, Organiser. The ban on both was lifted. That the two were conjoined in this one case is ironic in the light of current politics. These cases did help stabilize, to some degree, the freedom of expression, and we did not hear of people being arrested for incidental criticism of government action.

Why was a speedy trial as recommended in the Constitution and that was possible not so long ago, no longer possible now? A year ago, the Maharashtra police arrested five citizens on charges that they were activists who had links with the Maoists. Soon after, they picked up another five and accused them of the same links, then of organizing the riots at Bhima-Koregaon in 2017, and then of being part of a plot to assassinate the Prime Minister. One among them was released by the Bombay High Court on the ground that the charges did not merit arrest.

Those that organized the meeting at Bhima-Koregaon have stated categorically that none of these arrested persons was involved in the organizing of the meeting that ended as a riot. They have made a public statement to that effect. Nor were the ones accused of instigating a riot present at the scene. Yet the charges against the activists persist.

Their links with Naxals have not been proved, but the charge remains. Some of them have worked for the welfare of under-privileged groups in their own capacity and not through Naxals. These days of course, everyone and anybody can be called an Urban Naxal and become liable to arrest. The term is an oxymoron, but the people who use it seem unaware of this.

One may suggest that the legal process perhaps needs to look beyond the immediate case. It is ironic that those charged with having connections with Naxals, a charge that has yet to be proved, have been in jail for a year, yet another person charged with terrorist connections and being tried in a court of law is out on bail. Are the connections involved in the charges being differentiated? It would seem that a difference is being made between Naxals and what in this instance is labelled as a Hindu organization with terrorist connections. In the latter case, the person is not only out on bail but also been permitted to stand for election; and on being elected, has taken the oath as a legislator, and is now among those who will determine the direction of our lives. I am puzzled as to which people have links to terrorists. Or shall we make distinctions between the good, the bad and the indifferent among terrorists? It does seem a bit strange that a person who is under trial for terrorist activities should at the same time be legislating laws against such activity.

Then we come to the third charge against those in jail for terrorist activities. None of them are the kind of people who would regard the assassination of the prime minister or any other politician as politically useful. This is not the way in which normal people conduct politics, especially those concerned with the welfare of the under-privileged. Their activities are directed towards the improvement of society and making justice available to all. The recourse to political assassinations has so far been limited to members of organizations with titles that suggest that their intention is to protect Hindus. In doing so,it would seem that their ideology does not preclude assassinations. We have had four political assassinations since that of Mahatma Gandhi. No one has been arrested so far, but the suspicion is that the assassins might have belonged to organizations similar to that of the assassin of Gandhi.

The persons arrested are middle-class professionals—lawyers, academics, writers  and such like—and certainly not the sort who would organize riots or consider the assassination of anyone as the answer to political and social problems. Nevertheless, they are in jail as détenus and treated as common criminals. Justice Shah’s statement is being ignored. There have been no hearings since their arrests.

People have been petitioning various courts to give them bail, but so far none of us has succeeded. Yet these are precisely the kind of cases that can be tried speedily and decisions taken without delay. One can’t help but compare the situation of today with that of the years after Independence. One searches more desperately these days for justice and ethics.

The backlog of cases in the courts is appalling. It is a comment on the inadequacies of our system of justice and the complacency of most of those who run the profession. If, as we have been told, there are nearly 60,000 cases pending in the Supreme Court, there is little likelihood of judgements in one lifetime. Typically, there is a plea for more of the same— more judges and more parallel courts. Would this not be merely enlarging the problem instead of looking for a way to solve it? Solutions do not lie in merely repeating the same faulty system. Solutions lie in changing the methods of procedure and making them less time consuming and more efficient. Is this not possible?

Do all cases require a long time span, irrespective of whether they are criminal cases, or conflicts over property or marriage, or over fundamental rights and political issues?

We have another strange situation now, where a large number of our members of parliament have criminal cases against them, but, as legislators, they direct the passing of laws for the functioning of society—presumably referring in the process to some of the laws that they themselves have set aside.

Perhaps if there was to be legislation disallowing those that have criminal charges against them, whether rightly or wrongly, from standing for election until the charges are cleared, this might speed up the trials of at least the political détenus. However, keeping politically active people even without criminal charges under arrest is of course a well-known method of making them ineffective in politics. In our experience, it goes back to colonial times and was re-introduced equally dramatically in the Emergency. We have learnt much from our erstwhile colonial rulers.

Perhaps a sub-dividing of the functioning of courts can be worked out whereby some can move faster. Political cases and property cases seem to be better defined. Judges could consider specializing in the knowledge required for particular categories of offences as has been suggested, and this might expedite judgments. The same judge taking up a wide range of cases and being less knowledgeable in certain areas on which he or she would need guidance, does perhaps slow down the pace. Can legal training be made tougher so that there is some guarantee of better thought-out judgements? Can judges be more carefully appointed for such specialized categories of law?

One is sometimes startled by the ignorance displayed in judgements from judges in the lesser courts. One has the impression, and I may be wrong, that these are often the courts in which cases tend to get stuck. Could there be a recognized system of judges consulting, even formally if they choose to, with professionally trained people who could point out problems prior to the judgment being finalized? The decision would, of course, be that of the judge, but the judge should be encouraged to consult specialists where necessary. One holds one’s breath, for instance, each time an archaeological matter comes to court! Most judges are unaware of changes in knowledge over time in areas not of their specialization. So such consultations may help in coming to a decision. It is not enough merely to up-date books on law. Thinking also has to be up-dated.

One might consider a reorganization of the various courts. Small time offences could be dealt with in courts at the tehsil or municipal level, and the more complex ones at the district level. Only the really serious ones would go to the higher courts. The resort to appeal would remain. Some of this, is of course, being done, but some further decentralization might help. Can it be streamlined to move faster? Procedures in all professions have to be updated at intervals—we don’t have to stay put with the colonial structures. Similarly, there needs to be a combing out of those laws that were appropriate to colonial governance but need to be expunged in the legal system of a democracy. The law regarding sedition would be one.

In short, I am suggesting, as have many others, that the procedures of law and of the judiciary need to be sifted and streamlined. If the police were properly educated and trained, then the FIR would contain more of the necessary information rather than flab. Perhaps jails should also be segregated according to the nature of the charge. There would then be some rationality in the treatment of those who are imprisoned. Not everyone is a criminal. The regular rationalization of procedures prevents institutions from becoming archaic. This would also strengthen the Constitution.

Recommended: Follow this up with Vrinda Grover’s ‘Public Interest Litigations: On the Bhima Koregaon PIL’

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Romila Thapar is an Indian historian as well as an Emeritus professor at the Jawaharlal Nehru University. Her principal area of study is ancient India. She is the author of several books including the popular volume, A History of India. She has twice been offered the Padma Bhushan award, but has declined both times. Thapar has been a visiting professor at Cornell University, the University of Pennsylvania, and the College de France in Paris. She was elected General President of the Indian History Congress in 1983 and a Corresponding Fellow of the British Academy in 1999.