In political science literature, there is a familiar term — democratic barbarism. Democratic barbarism is often sustained by judicial barbarism. The term “barbarism” has several components. The first is the overwhelming appearance of arbitrariness in judicial decision-making. The application of law becomes so dependent on the arbitrary whims of individual judges that the rule of law or constitutional terms no longer have any meaning. The law becomes an instrument of oppression; or, at the very least, it aids and abets oppression. This usually means weak protection for civil liberties and dissenters and an unusual degree of deference to state power, especially in constitutional matters. Anyone arrested in India for any crime is entitled to a lawyer of their choice — a right guaranteed under the Constitution.
Siddique Kappan, 41, a Kerala journalist based in the national capital, was arrested on 5 October on his way to Hathras to report the aftermath of the alleged gang rape and death of a Dalit woman. The Uttar Pradesh Police said they suspected he planned to create unrest in Hathras.
After that Kappan has spent 49 days in custody — with a petition in the Supreme Court, an application before the magistrate in Mathura, and another application in the apex court — before he finally got to even speak to a lawyer, let alone officially sign him as his legal representative.
Advocate Wills Mathews, who is the lawyer for the Kerala Union of Working Journalists (KUWJ) and has been trying to get in touch with Kappan for weeks now, told ThePrint that he finally got a phone call from him Tuesday evening. Mathews told ThePrint, “Around 4-5 pm, Siddique Kappan contacted me from the jail. We talked for almost 5 minutes. I found him to be healthy and okay. I inquired about his welfare. He said he is getting medicines, food and that everything is alright. He sounded fine,” Mathews said.
On 14 September, a 20-year-old Dalit woman from Uttar Pradesh’s Hathras was allegedly gang-raped and assaulted by four men. She was left in critical condition, with severe injuries to her neck and spine. After initial treatment in the State, she was shifted to Delhi but succumbed to her injuries 15 days later on 29 September.
After accusations of shielding the accused, the UP Police triggered a fresh row when it forcibly cremated the woman’s body without the presence of her family members, on the night of 29 September. Amid growing tensions, the Hathras administration imposed Section 144 of the Code of Criminal Procedure (CrPC) in the district and sealed the state’s borders till 31 October.
Kappan, who has been working as a journalist for a decade and currently works with a news portal as a regular contributor, left a message for his office on 4 October, informing them that he would be traveling to Hathras the next morning to cover the incident. However, before he could reach Hathras, he was arrested at a toll plaza in Mathura. The police had initially arrested him, along with three others, under Section 151 of the CrPC, which allows an arrest to prevent the commission of a cognizable offense.
There seems to be a mismatch in the arrest timing. According to the arrest memo, he was arrested at around 4:50 pm on 5 October. However, Mathews told ThePrint that according to Kappan, the latter was actually arrested at around 10:20 am in the morning on 5 October. He said Kappan conveyed the correct time to him over the brief phone call Tuesday.
A day after his arrest, the KUWJ filed a habeas corpus petition in the Supreme Court, demanding his release. Kappan is the elected secretary of the Delhi unit of KUWJ. This was after the KUWJ office-bearers as well as Kappan’s family had been unable to contact him or get any information on his whereabouts for over 24 hours since his arrest.
The petition said the arrest was “with a view to obstruct the discharge of the duty of the detainee in the capacity as a journalist”. It alleged that the Supreme Court’s guidelines for arrest and detention were violated, as neither his family members nor his colleagues were informed about the arrest or the place of his detention.
KUWJ and Mathews have since alleged that multiple attempts from their side to meet Kappan since his arrest have failed. According to an application filed by KUWJ on 29 October in the Supreme Court, when Kappan was produced in the trial court in Mathura on 6 October, the magistrate prohibited him from speaking to a local lawyer who Mathews had contacted to represent him. While Kappan was sent to 14-day judicial custody that day. At least two local lawyers, representing him have since withdrawn from the case.
On 16 October, Mathews traveled to Mathura from Delhi and filed an application in the court of the chief judicial magistrate, Mathura, to meet Kappan. Three former and current officials of KUWJ also sought permission to meet him. On 29 October, along with the application requesting access to Kappan, a bail application was also filed in the Supreme Court, in the same writ petition.
KUWJ’s habeas corpus petition has come up before the Supreme Court twice since it was filed. Both times, the court has questioned the lawyers for the petitioner, as to why they do not approach the high court instead. During the last hearing Monday (16 November), the court issued notice to the UP government and the UP Police. The petition will now be heard Friday. However, according to NDTV, the Supreme Court has remarked that the petition can still be sent to the high court, instead and said that it discourages the use of Article 32 petitions.
There has been a gross violation of the rights of the Kerala journalist who came to cover the news, at a time when national media wasn’t focusing on it. The nonchalance of the Court is worrying, and especially the Chief Justice saying that they are discouraging Article 32 petitions. Article 32 is one of the glories of the Indian Constitution that protects fundamental rights. It can be suspended only in a state of emergency. In some ways, discouraging the use of this article is a perfect metaphor for our times: We don’t want to formally declare a state of emergency but we might as well act as if there is one, as and when the need arises. Discourage, rather than suspend, the use of Article 32. The fight against this is not going to be easy. The democratic barbarism, where every issue is now thought of through the prism of partisan combat, not public reason, has now infected assessment of the judiciary partly as a result of its own inability to project that it is above the fray. Ironically, the tradition of legal activism that is heavily invested in making the judiciary the arbiter of everything legitimizes judicial intoxication. The trend still continues.