Must India fight a ‘third war of Independence’and will lawyers be at the vanguard?

Lawyers were in forefront during freedom struggle and Mahatma Gandhi, himself a lawyer, did not file petitions; he defied laws and judicial orders he deemed unjust. What will Prashant Bhushan do?

Advocate Prashant Bhushan
Advocate Prashant Bhushan
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Sujata Anandan

Many years ago, I had occasion to meet several esteemed lawyers who had put up a fierce resistance to the Emergency. They not only protested on the streets but took up every case, small and big, to fight against the authorities in court.

One of these lawyers then had told me, “It is not the judges or the journalists but lawyers like us who kept up the fight relentlessly and never gave a moment's rest to the authorities. Without that resistance, the Emergency may not have been overturned.”

This lawyer had lamented that he had been disappointed by several Supreme Court justices, including a prominent one from Maharashtra, usually a progressive state which always shook off the shackles of bondage. “But there were enough among the lower rungs of the judiciary who held the Constutution supreme and remained our hope throughout those months,” he said.

This lawyer could be facing a sense of dèja vu as he finds the higher judiciary today caving in to a virtual and unending Emergency in the country. It took only 24 days for the Supreme Court to hold Prashant Bhushan guilty of contempt when it has been taking them months and years to even hear so many other important cases – like petitions against the Citizenship Amendment Act or the continuing incarceration of former Jammu and Kashmir chief minister Mebooba Mufti for no valid reason.

I have my own bone to pick with Bhushan – some years ago he teamed up with the fascist forces and for all his erudition and courage failed to see how they were leading India into the dark ages. It has taken years to recognise that these dark forces do not need an ‘official’ and ‘Constitutional’ Emergency to bend journalists or judges to their will but now, like the advocate from the Emergency days, I am beginning to think that lawyers like Bhushan – and there are many more of them battling the authorities – might become the bane of their existence and not allow all their evil designs to succed.

Bhushan's refusal to apologise and rethink his statement or move for a reconciliation or otherwise give in, quoting Mahatma Gandhi on taking his punishment cheerfully, I believe, could yet prove the first major strike towards the restoration of democratic processes and bringing its revered institutions back on an even keel.

Gandhiji's defiance of the British every step of the way confounded the authorities of that time. I am sure today's authorities have found Bhushan equally confounding. In fact, like Bhushan, we all need to return to the Mahatma Gandhi’s brand of defiance and passive resistance – and in view of this government's previous attempts to deny us basic rights, as in the Citizenship Laws, disobedience rather than contesting them in the courts.

For today that estate of democracy is as much on the side of the government as the institution was with the British during the freedom movement. We know how Gandhiji broke the salt law by cocking a snook at a British judge in Ahmedabad court, who famously forbade him from undertaking the salt march.

But we must also remember that the first strike for Independence began from Champaran in Bihar where Gandhi defied magisterial orders to visit the district and, when hauled up before the court, admitted he had broken the ban order and was admitting to it not to seek mercy or clemency but to accept whatever punishment the court deemed fit. It left the British grinding their teeth and I wonder how many people then realised that British rule in India had just been delivered a body blow and would soon come to an end.

Prashant Bhushan is no Mahatma Gandhi and only recently has collaborated with fascist forces as Mahatma Gandhi and Jawaharlal Nehru would never have done. But given the times he and others like him may well be given the benefit of the doubt for being taken in by certain elements and trusting them to give us a Ram Rajya.

Now faced with the asuras of democracy, people are slowly waking up to what they lost when they voted the UPA out of power in 2014. The Congress restored democracy after the Emergency that lasted 18 months and lost the election thereafter, allowed the judiciary its independence even when the judgments were unfair and not to their liking, did not threaten or murder independent judges, did not politicise the army, did not go against the Constitution as in the abrogation of Article 370 and did not treat any one as a second class citizen.

I do not believe anyone could have fathomed the extent of lies, crony capitalism, violence and mauling of democratic institutions this regime would go to retain power. Before and after the Emergency we may have faulted the government on various issues but never for turning India into a travesty of its full bodied and full-blooded republican ideals and moorings. The first bugle has been sounded for the restoration of democracy. We must all help fight the third war for Independence.

(The author is a Mumbai based commentator. Views expressed are personal)

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