The Appellate Division of the Supreme Court more explicitly asked for stopping forced disappearances. The fear of disappearance is an effective method of making everybody feel panicked with no legal remedy. So the injustice of the whole legal process becomes a shame for fear of disappearances.
For creating pressure upon the lower courts the unuttered threat of disappearance of himself or family members cannot be ruled out. It is not unknown to their Lordships. Otherwise so many false cases could not have been entertained by courts. One defamation case could not become 12 cases by 12 persons in 12 different places.
The Supreme Court should have done more than staying the cases. The matter should have been openly taken up for investigation. The helpless lower courts would have known that the Supreme Court exists with supervisory power to stop abuse of such blatant violation of one’s liberty and safety for life.
Though getting bail was right in such a case, but yet the courts had to reject for pressure from above. This incident is mentioned because this was widely published.
In most cases when the wrong is exposed the wrong goes. On the other hand when the wrongs are disregarded, then committing wrongs get pushed up.
The SC was hearing a review petition filed by the government against its 2016 judgement that upheld the 2003 HC verdict against the arbitrary exercise of power by law enforcers using several sections of the Code of Criminal Procedure (CrPC), including section 54.
The apex court said the people could be arrested under section 54 of the CrPC but thereafter he could disappear. And then the person never returns. So arrest without court’s order must stop.
According to a human rights body, Odhikar, 553 people reportedly disappeared between 2009 and 2019. Bodies of 74 were found later, 312 returned alive while 167 are still missing. According to another rights body — Ain o Salish Kendra, as many as 350 people reportedly fell victim to enforced disappearance between 2014 and 2019.
The reality remains the government has made the rule of law a farce by abusing both the law and the Constitution beginning with denial of free election.
We welcome the decision of the Supreme Court for issuing warnings against arrests without warrant and disappearances. Only blaming the lower judiciary is not the remedy unless the Supreme Court takes a stern position as protector of the Constitution and the fundamental rights.
The Appellate Court was not satisfied with arresting people arbitrarily and granting remand including disappearance but went on without following the guidelines provided in a judgement binding on the lower courts. This judgement was unheeded for the last 17 years.
The law ministry treats the lower judiciary as fully under its control. And the lower courts also oblige ministry concerned ignoring the existence of the judgement. Notwithstanding the supervisory power of the Supreme Court, it did not care to notice that the guidelines were having no impact.
Only by taking a strong position on behalf of lower courts the Supreme Court could ensure non-interference of the law ministry with the lower judiciary.
We understand the difficulties and the helplessness of the whole nation for the consequences of a government not legitimately elected by the people.
The basic democratic institution of free election is buried. An unelected also does not enjoy any respect outside. Easy foreign trips have not changed the stigma of not-elected. As long as the democratic Constitution exists and not denied, the government must remain under the restraints of the Constitution.
As long the government recognises the existence of the Constitution, the courts have no reason to feel cowed down. The challenge has to be with the boldness needed to justify the court’s existence.
The Supreme Court still exists on its own strength as the only legitimate constitutional institution with the responsibility of protecting the rule of law and liberty of the people. Its strength comes from the people’s Constitution.
We may say, the backbone of the Supreme Court was broken when former Chief Justice Surendra Kumar Sinha was forced to leave the country with the help of the court. We showed our weakness.
It was unnecessary to force him to go out of the country when he could have been taken to task if he was guilty of any wrong. If we cannot maintain our respect we cannot show our strength. Former Chief Justice Mr Sinha was not punished, rather the whole judiciary was disrespected.
A democratic Constitution is meaningless to exist if the rights of the people guaranteed by the Constitution can be flouted recklessly using the courts.
In our view, either the Supreme Court exits or not at all, let the people lose all hope of liberty and sense of safety than allowing fake hope of law and justice.
Let it not deny that police have overwhelming power to put anybody in jail without bail or trial, which is moving us all towards an awful chaos. The country’s economic destruction will have dangerous consequences. Extorting money from helpless people will not save the fall of the economy.
Even in bailable cases the lower courts do not grant bail without the clearance of the law ministry. That does not mean the lower courts also do not abuse its own power without interference of the law ministry.
It is our hope and belief that the Supreme Court has shown courage by its observations that it is now ready to show the strength and power. The only legitimate constitutional institution is the Supreme Court.
Let all arrest without warrant be stopped, and bail is granted as right to an arrested person and sending an arrested person to police remand for investigation without lawyer’s presence should not happen anymore. The people’s life and safety will be much protected. This will also help the government staying in power despite desperate anger of the people. To find life without safety is the worst thing.
