The foot soldiers of justice take the lead and light the path

The latter half of February this year has been an interesting time for our crumbling judicial architecture and a mauled Constitution. It is a truism in the military that wars are won by the foot soldiers, not by the generals. This is not to belittle the contributions of the top brass but to emphasise the obvious: that it is the soldiers on the ground who are the first responders in any battle, that it is they who have to either hold their ground or to take the battle to the enemy. All the planning at military headquarters is of no avail if the warrior in the trenches cannot deliver.
I use this simile for our judiciary today after much reflection, in the aftermath of a brace of judgments delivered in Delhi this last month by two district court judges. For it was becoming increasingly clear over the last few years that the judiciary was losing the war launched against the constitution by the executive- in fact, it was a reluctant adversary, at best “willing to wound, but afraid to strike.” Issues like the challenges to the Electoral bonds, CAA, Article 370, NRC, laws on “love jihad”, reorganisation of Kashmir, habeas corpus, the farm laws, UAPA , bail applications, etc. were taken off the shelves and stored in the basement, gathering dust, cobwebs and jaded obiter dicta. The generals, it appeared, were reluctant to go to war. The credo “Bail is the rule and jail the exception” became a distant memory, with hundreds incarcerated with malice by the police and non-application of mind.
But the judiciary’s foot soldiers- or at least some of them- showed that they were made of sterner stuff and were not afraid of the good fight. This is how I see the judgments passed by two district judges in Delhi recently, against the run of play and in the face of the most ruthless executive this country has ever seen. They decided to engage with the adversary even while their superiors were busy giving gratuitous advice to rapists to marry their victims, or laying down innovative new law on “skin contact” being a necessary ingredient of sexual molestation, or heaping unctuous praise …. It’s always a pretty and heartening sight when a couple of Davids take on a Goliath.
Additional Sessions judge Amitabh Rawat,on 4th January 2021 released three NE Delhi riots accused ( Gulfam, Aatir and Osama) on bail; the bail pleasantly surprised most court watchers, but what revived hope was his unexpected castigation of the Delhi police: he condemned their ” perfunctory investigation” and stated that the charge sheet was ” filed in a very lackadaisical manner.” His order only confirmed what had been Delhi’s worst kept secret for the last one year. As if to drive home the point, judge Rawat then released two more accused ( Shanu and Zarif) on 19th January for similar reasons.
More was to follow. On 16th February Additional Sessions Judge Dharmendra Rana granted bail to Devilal Burdak and Swaroop Ram, accused of sedition for a post on the farmers’ protest on Facebook. In a first for any judicial officer in recent times, he came down heavily on the Delhi police: ” Sedition cannot be invoked to quieten the disquiet under the pretence of muzzling the miscreants.” Was the worm finally beginning to turn, all right thinking people wondered?