As we mark 75 years of the Constitution of India, I urge everyone to remember the ways in which the core values of the Constitution flounder in a deep ethical and moral crisis, trapped as we are in reductionist, mechanical readings of the constitutional value of personal liberty and human dignity. In the midst of the celebration, we need to step back and take a sober look at the right to personal liberty, which is a core constituent of an idea of justice.
Reinstating dissent as constitutional ethic
The Supreme Court of India reinstated Justice S. Fazl Ali’s dissenting opinion in A.K. Gopalan vs State of Madras, unanimously in Puttaswamy vs Union of India (2017), a case about the fundamental right to privacy. The preventive detention of the communist leader, A.K. Gopalan, by the government of independent India and the Supreme Court’s majority ruling on constitutional interpretation in that case, in the inaugural year of the Constitution, (1950), have now been effectively declared as a judicial wrong. The resurrection of this dissent (which, in effect, upheld Gopalan’s right to political dissent) and two later ones (all three on the question of personal liberty), saw the majority judgments truncating liberty as being flawed from the standpoint of constitutional ethics. Within a broader framing of justice, the technicalities of the interpretation of a fundamental right were seen as inseparable from the centrality of personal liberty to constitutional ethics.
It can scarcely be forgotten that Article 21 (the right to life and personal liberty) is ‘designed to assure the dignity of the individual as a most cherished human value which ensures the means of full development and evolution of a human being’ (Justice R.F. Nariman in Puttaswamy, paragraph 42). How and on what basis might we piece together memories that render the Constitution ‘workable’, ‘flexible’ and ‘strong’ (in the words of Dr. B.R. Ambedkar)? How may we discover pathways through which the Preamble lights up ways to ‘hold the country together’ at a time when the dominant political discourse reduces and degrades politics to the fractured banality of shards — such as the ‘tukde tukde’ narratives?
Preventive detention, arbitrary arrests, denial of fair trial through the impunity that is guaranteed statutorily in anti-terror laws, and democidal-domicidal violence enact ‘rituals of humiliation’ — to use Sunder Boopalan’s words — and impose indescribable wrongs on conscientious resisters in India today. I posit a juxtaposition that is instructive — there is the case of A.K. Gopalan (1950) challenging the inauguration of constitutional contradictions and being detained at one end, and Umar Khalid, Sharjeel Imam, Gulfisha Fatima and several other anti-Citizenship (Amendment) Act (CAA) resisters in prison (2025) challenging the CAA 2019 and living with bulldozers, dispossessions and the partisan prison complex, at the other end.
By 2017, when the Puttaswamy judgment came, preventive detention and prolonged custody without bail had proliferated under the aegis of constitutional courts; there was an escalation in arrests and the prolonged detention of dissenters under the spiralling list of laws (State and central) that, by now, authorised detention and custody with scant regulations. Over the years, the process has become the punishment. We witness young and spirited dissenters who courageously challenged the CAA 2019, now trapped in the talons of anti-terror laws. There is an impenetrable opacity of procedure and an endless deferment of decisions on the vital issue of personal liberty.
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Dissent is criminalised even while dissent is reinstated; this is the deep paradox of our times that courts must reflect on in the 75th year of the Constitution.
A.K. Gopalan and today’s resisters
In his memoir, In the Cause of the People: Reminiscences (1973), A.K. Gopalan gives us a fine-grained account of his imprisonment along with several others ‘by Indians’, and of the numerous trials he faced and the petitions he filed to secure liberty from British courts and Indian courts thereafter, but to no avail. Deciding to celebrate Independence day in jail on August 15, 1947, he led a small procession in jail and hoisted the national flag. He was arrested for this ‘crime’ on a treason charge for stirring enmity against the emperor under Section 124A, and produced before the ADM Calicut in independent India (p.274).
He filed affidavits and wrote letters to the court ‘as a matter of course’ and was unwilling to ‘remain quiescent’. Gopalan himself argued in another writ petition filed in Madras, in a hearing that saw large crowds: ‘The court set me free on the last day of the hearing. I was re-arrested after release at the door of the court and escorted once more to Cuddalore jail. I filed another writ petition which was heard two days after my re-arrest. The court released me again. The judges specially ordered the police not to touch me. The police did not dare to disregard this injunction. I had been imprisoned in December 1947 and released in 1951. Four years in jail!’
This account has a familiar contemporary ring to it. The anti-CAA resisters have spent roughly four years in custody, but the difference is that the courts have not yet moved with a sense of urgency to set them free. The Preventive Detention Act, 1950, belonged to free India’s ‘rule of law’ regime.
K.G. Kannabiran, while reflecting on the travails of civil libertarian lawyers and their petitioners in courts over five decades, observed that the Gopalan judgment “is our own. It is the first ‘Indian-made foreign judgement’” which upheld an Indian-made colonial law. To this, 75 years later, we have now added more Indian-made colonial laws. But will the courts hold the Puttaswamy view of dissent and dignity in place and extend their reach as constitutional values that further the cause of personal liberty as the ultimate expression of justice under the Constitution?
No room for retrospective regret
The case of the 16 arrests made in the Bhima Koregaon case (writers, intellectuals, cultural activists, poets, performers, teachers), the 19 arrests made in the Delhi riots case of anti-CAA protesters (most of them community leaders and student leaders and activists, of whom 17 are Muslim), and the anticipation of violence, arrest and domicide as a ‘clear and present danger’ confronted especially by Muslims who dare to challenge unlawful state action, must make us pause. They call for a slew of interventions by constitutional courts in the exercise of ‘creative constitutionalism’ (to use Professor Upendra Baxi’s phrase) in the cause of the right to personal liberty as justice. This is needed so that India does not end up waiting ‘another seven decades and four generations’ to discover that we were again on the wrong side of the Constitution. Or that we understood and worked the Constitution in its seventh decade in ways that negated its ethical spirit, instead of upholding and furthering the idea of justice embedded within.
Kalpana Kannabiran is a sociologist based in Hyderabad
Published - January 25, 2025 12:16 am IST
