Demolishing the frame from outside the Constitution Premium

Turning a blind eye to profound violations of democratic conditions outside the text of the Constitution and laws would render the Constitution and the Supreme Court without their identities

The often-repeated term “chilling effect” does not really capture the gravity of what transpired in India recently. The Delhi Police conducted extensive raids on the news portal NewsClick, eventually arresting two persons, including its founder and Editor-in-Chief, Prabir Purkayastha, in cases that have invoked the Unlawful Activities (Prevention) Act. The police action was sweeping in nature, with even very junior staff within the news organisation searched and their electronic equipment seized.

In brief, the First Information Report accuses the news organisation of accessing funds from pro-China elements and in turn, through its coverage of events such as the farmers’ protests in 2020-21, undermining the internal security of India. The news organisation has rejected these accusations.

That such drastic police action against the media, to the extent of invoking a terrorism law against journalists, raises serious questions over the erosion of freedom of speech and expression, has been extensively commented upon. But it would be a mistake to look at this development in isolation.

When seen together with other trends, such as the increasingly precarious position of religious minorities subjected to an unrelenting cycle of violence and demonisation, and specific changes to political financing in the introduction of the opaque instrument of electoral bonds, a conspicuous pattern emerges that has wider repercussions to the idea of democracy and rule of law.

An immediate response of the media fraternity, that was justifiably concerned, was to write a letter to the Chief Justice of India, D.Y. Chandrachud, exhorting him to take judicial notice of the matter. The logic perhaps was that a Supreme Court of India that gave India the famed “basic structure doctrine” in an attempt to restrict majoritarianism running roughshod over fundamental rights, would see that a line has been crossed.

A gamut of developments over the past few years relating to religious minorities, freedom of expression and speech and political financing makes it amply clear that the basic elements of the Constitution are being subverted from outside the text of the document. This requires the Court to go beyond legal textual obsessions to countenance the challenge posed to the Constitution’s identity as a democratic, liberal, transformative document. At stake is also the identity of the Court and its readiness to guard the Constitution.

The question of what the extent of a court’s reach should be in a democracy has gripped legal scholars for centuries. The fact that a court is an unelected institution in a system that has an elected legislature has led several scholars to question the legitimacy of the judiciary striking down laws made by an elected entity. Parliament, after all, is seen as the representative of the people’s will.