In the midst of marking 75 years of the Constitution of India, India needs to take a sober look at the right to personal liberty being a core constituent of an idea of justice

Dissent as constitutional ethics

• Landmark Case: The Supreme Court unanimously reinstated Justice S. Fazl Ali’s dissenting opinion from A.K. Gopalan vs State of Madras (1950) in the Puttaswamy vs Union of India (2017) judgment.
  • This dissent upheld A.K. Gopalan’s right to political dissent, challenging the government’s use of preventive detention.
• Recognition of Flaws: The preventive detention of A.K. Gopalan and the Supreme Court’s majority ruling in 1950 were declared a judicial wrong in light of constitutional ethics.
  • This acknowledgment was a critical step toward rectifying historical judicial errors.
• Flawed Majority Judgments: The 1950 majority opinions that curtailed personal liberty were criticized for their failure to uphold the centrality of liberty as envisioned by the Constitution.
• Fundamental Rights and Ethics: The technicalities of interpreting fundamental rights cannot be separated from the ethical obligation to protect personal liberty.
  • Personal liberty is fundamental to the Constitution’s values of justice, dignity, and freedom.

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Significance of Article 21

• Right to Life and Personal Liberty Article 21 guarantees the right to life and personal liberty, ensuring the dignity of the individual as a cherished human value. It fosters the full development and evolution of every human being.
  • Justice R.F. Nariman, in Puttaswamy vs Union of India (2017), emphasized Article 21’s centrality to human dignity (Paragraph 42).
• Vision of Dr. B.R. Ambedkar: The Constitution must remain adaptable and robust to address contemporary challenges while ensuring its practical application.
  • A dynamic interpretation of constitutional values is critical to navigating modern complexities.
• Guiding Framework: The Preamble serves as a moral compass, providing guidance to uphold unity and integrity. 
  • It emphasizes justice, liberty, equality, and fraternity, which are crucial in countering fragmented political narratives, such as the ‘tukde tukde’ discourse.

Issues of Preventive Detention and Arbitrary Arrests

• Erosion of Rights: Preventive detention and arbitrary arrests, coupled with denial of fair trials under anti-terror laws, have institutionalized ‘rituals of humiliation’ for dissenters. 
  • These actions violate constitutional values of justice and liberty, imposing severe hardships on conscientious resisters.
• A.K. Gopalan’s Struggle: A.K. Gopalan challenged constitutional contradictions when detained under preventive detention laws soon after independence. 
  • Despite judicial interventions, he faced repeated arrests and prolonged incarceration, reflecting the misuse of legal provisions.
• Contemporary Dissenters: Dissenters like Umar Khalid, Sharjeel Imam, and Gulfisha Fatima, who opposed the Citizenship (Amendment) Act (CAA), face:
  • Harsh imprisonment under anti-terror laws such as UAPA.
  • Demolitions, dispossession, and marginalization through a partisan prison system.
  • Their plight mirrors the misuse of legal tools to suppress dissent, echoing past injustices faced by figures like Gopalan.
• Widespread Use Post-2017: Preventive detention and prolonged custody without bail have become prevalent, with support from constitutional courts.
  • Numerous state and central laws permit detention and custody with minimal regulations, leading to widespread misuse.
• Delays in Justice: The process of detention itself has effectively become the punishment, as decisions on personal liberty remain delayed, opaque, and inaccessible.
• • Legal safeguards are often bypassed, creating a system that prioritizes control over accountability.
• Anti-CAA Dissenters: Young dissenters who opposed the Citizenship (Amendment) Act (CAA) 2019, including Umar Khalid and others, are trapped in anti-terror laws.
• • They face indefinite detention with little transparency, reflecting a systemic suppression of dissent.
• Criminalisation of Dissent: While some judicial judgments (e.g., Puttaswamy 2017) recognize dissent as a constitutional ethic, dissent continues to be criminalized under stringent laws like UAPA. 
  • This contradiction highlights the need for reflection in the 75th year of the Constitution, emphasizing the gap between constitutional ideals and on-ground realities.

Imprisonment and Legal Struggles of AK Gopalan

• Detailed Memoir: In his 1973 memoir, In the Cause of the People: Reminiscences, A.K. Gopalan recounts his imprisonment and the numerous legal battles he fought to secure his liberty. 
  • He filed petitions in both British and Indian courts, but his efforts to secure justice were unsuccessful.
• Hoisting the National Flag: On August 15, 1947, Gopalan celebrated India’s independence by leading a small procession in jail and hoisting the national flag. 
  • This act of defiance led to his arrest under Section 124A (Sedition), with accusations of stirring enmity against the emperor.
• Cycle of Arrests and Re-Arrests: Gopalan faced continuous imprisonment, with a pattern of being released by court orders only to be immediately re-arrested at the prison gate.He was held for four years (1947–1951) despite persistent legal petitions.
• Ignoring Judicial orders: In one instance, after a court ordered his release and explicitly instructed the police not to arrest him again, the police violated this injunction.

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Recent Cases of Arrests

• Four Years of Custody: Like Gopalan, anti-CAA protestors such as Umar Khalid, Sharjeel Imam, and Gulfisha Fatima have spent roughly four years in custody, challenging unjust state actions.
• Lack of Judicial Urgency : Unlike Gopalan’s era, courts today exhibit minimal urgency in addressing the plight of detainees under anti-terror laws like UAPA.
• Bhima Koregaon and Delhi Riots Cases: The 16 arrests in the Bhima Koregaon case and 19 arrests in the Delhi riots case highlight the targeting of intellectuals, artists, activists, and community leaders.
  • A majority of these detainees are Muslim, raising concerns about systemic discrimination.

Legacy of Colonial Laws

• Upholding Colonial laws: K.G. Kannabiran described the Gopalan judgment as the first “Indian-made foreign judgment,” as it upheld colonial-era laws in post-independence India. 
  • Even after 75 years, laws like sedition and preventive detention remain embedded in the legal system, undermining constitutional ideals of liberty and justice.
• Preventive Detention Act, 1950: Enacted after independence, this law reflects the persistent tension between security and personal freedoms, often restricting liberties under the guise of maintaining order.

Way Forward

• Upholding Constitutional Values The Puttaswamy judgment (2017) emphasized dignity and dissent as core constitutional values. Courts must now decide whether to uphold these ideals or continue to permit laws and practices that curtail liberty.
• Creative Constitutionalism: Professor Upendra Baxi’s concept of “creative constitutionalism” calls for judicial innovation to protect personal liberty and justice.
  • Such interventions are essential to prevent future generations from looking back at today as another failure to uphold the Constitution’s ethical spirit.
• Need for Judicial accountability: Cases like Bhima Koregaon, Delhi riots, and the detention of anti-CAA protesters illustrate the urgent need for judicial accountability.
  • Failure to act risks perpetuating a legacy of injustice and weakening the Constitution’s promise of justice, liberty, and dignity for all.

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Conclusion

It is imperative to ensure that our actions today uphold the ethical spirit of the Constitution, rather than working against the idea of justice embedded within it. Failing to align with the Constitution’s core principles risks negating its vision of liberty, dignity, and justice for all.

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