Rights and duties as per the Constitution

Hindustan Times

2 days ago

Odd as it may seem, I sometimes wonder if our judges are their own worst enemies. At times, they can say the strangest things — almost as if they got carried away. Do they not worry about its implications? Are they not concerned about its impact? Let me illustrate my point by referring to Justice Surya Kant's and Justice Kotiswar Singh's handling of the Ali Khan Mahmudabad case.
First, they accused Mahmudabad of 'dog-whistling' and using words with double meanings. They said his 'choice of words is deliberately made to insult, humiliate or cause some kind of discomfort to others'. But they didn't say what words they were referring to? Instead, they went on 'he could convey these very feelings in a very simple language … use terminology, which is simple, respectful and very neutral'. But, again, they didn't identify what they were alluding to.
This prompted the scholar Gautam Bhatia to point out that a dog-whistle is usually at a frequency inaudible to human ears. So, what part of Mahmudabad's Facebook posts were dog-whistles? Who were the 'dogs' he was whistling to? And who were the 'non-dogs' he was ignoring?
None of this was pointed out by the judges. Should it not have been? Instead, they said: 'To holistically understand the complexity of the phraseology employed and for proper appreciation of some of the expressions used in these two online posts, we direct the Director General of Police, Haryana, to constitute an SIT.' But this body will only comprise police officers. Surely lexicographers like Samuel Johnson and Noah Webster would have been more appropriate?
Actually, this was the least of the concerns aroused by the two judges' comments. More worrisome are these sentences: 'Everybody talks of rights, I have the right to do this, right to do that … without telling you what your duty is towards the nation.'
But whilst the Constitution specifically identifies the fundamental rights conferred on us as citizens, it doesn't identify constitutionally enforceable duties. We don't even have a duty to be patriotic. We have every right to be sceptical and questioning rather than wrap ourselves in the flag. So, on what basis were the judges equating rights with duties? They did not say.
However, it is what they said about the students and faculty of Ashoka University, where Mahmudabad is a professor, that is most perplexing. 'If they dare to do anything we will pass an order …it is not acceptable to us that some of these so-called private universities open, and then all kinds of elements join hands there, and they start making irresponsible statements. We know how to deal with these people.'
What on earth prompted this? They simply threw this comment into the mix of other things they said without any explanation or justification. It is almost as if a fantastical leap of thought led them from one issue to another, even if they are not at all connected.
So, what prompts judges to speak like this? These are not things they might say when they are playing devil's advocate to explore the depths of a particular argument. This sounds very much like their own opinions. And that leaves one to wonder whether they are playing to the gallery rather than sticking loyally to their duty as guarantors of our constitutional rights. The mere fact such a question can be asked suggests they spoke too much. At the very least, they were not judicious.
However, the bit that truly stunned me is what Gautam Bhatia wrote in this newspaper. He was referring to the gag order the two judges placed on Mahmudabad. He wrote: 'It is important to point out that the judiciary does not have the power to gag or silence someone; it's only empowered to determine whether the government's decision to do so is constitutional or unconstitutional.'
When I asked Bhatia whether this meant the judges have exercised powers they do not have, his discreet but telling reply was they had acted 'beyond their jurisdiction'. All I can say is oh dear!
Karan Thapar is the author of Devil's Advocate: The Untold Story. The views expressed are personal