When a High Court bench on Thursday gave Delhi Police what amounted to a four-week

breather, on the matter of registration of FIRs against BJP leaders and others who made hate
speeches in the run-up to the communal conflagration in the capital, it stepped back from the
urgency displayed only a day earlier by another bench of the same court. Late on Wednesday, a
bench headed by Justice S Muralidhar had questioned the conduct of the police, got it to listen to
video clips of the hate speeches, ordered that a decision on FIRs be taken by Thursday. In effect,
the second bench — headed by Chief Justice DN Patel, after Justice Muralidhar’s transfer to
another court was effected by a late-night notification — acceded to the government argument
that immediately lodging FIRs on hate speech was not conducive to restoration of normalcy. The
court letting up pressure on the government even as the consequences of the mobilisation of hate
and fear take a mounting toll in the city, is deeply troubling. What is more disquieting is that it
appears to be part of a building pattern. In too many crucial cases that involve a face-off between
government and citizen, on questions of the fundamental rights and liberties of the individual and
their protection from arbitrary, whimsical or malevolent transgression by the state, the court has
been seen to see things from the government’s point of view. Over and over again, it has given
the government time, and the benefit of the doubt.
Ever since the detention by government of Kashmiri politicians, business leaders, lawyers and
journalists after the August 5 decision, to take another instance, amid an information blackout,
the courts have shown a similar lack of alacrity on habeas corpus petitions. This, despite the fact
that they concern the most important of all rights, liberty. And in spite of the reality that an
adjournment in such a petition effectively extends the detention without determining its legality.
The rash of sedition cases being filed against individuals on flimsy grounds hold up the same
dismal pattern. Even though the SC has underlined that while ordering an arrest for sedition, a
magistrate must satisfy herself that there is clear and immediate incitement to violence, it has
done little to enforce its own directions. Most recently, a 19-year-old student, Amulya Leona
Noronha, was sent to judicial custody for two weeks in Bengaluru after Section 124A was
slapped on her for mere sloganeering. Across states, in the 25 sedition arrests since CAA protests
began, analysed by this newspaper, remand orders by magistrates do not ask questions, nor state
reasons.
It is in this context that a Supreme Court justice’s effusive praise in public of the Prime Minister
as a “versatile genius” and “internationally acclaimed visionary” blurs the inviolate line that
should mark out the questioning distance between the judiciary and the executive, so necessary
for the former’s independence. At a time when the political executive wields — and sometimes
weaponises — a large mandate and countervailing institutions are under strain, the independence
of the judiciary has never looked more indispensable. For, it is the judiciary which has been the
custodian of constitutional principles and values, the only protection the citizens, especially the
powerless and the defenceless, have against the powers that be. That needs underlining, with all
due respect.