Boundaries of freedom

Two judgments temper arbitrary executive power

Two recent court judgments once again demonstrated India's judicial system at its best - stepping in to protect Indian citizens from the illicit use of force that has been applied with the connivance of the state. The first, ordered on July 5, was regarding the case of Perumal Murugan, a writer in Tamil Nadu. Mr Murugan's novel Madhorubhagan became controversial some years after it was published, and led to threats of violence being issued against the author by organised elements in Tiruchengode, which is where the historical novel is set. The district administration organised a "peace committee" that enforced the following solution: that Mr Murugan would apologise, remove sections from the novel, and withdraw unsold copies. In response, Mr Murugan declared on Facebook that "Perumal Murugan the writer is dead". The ad hoc peace committee's decision was challenged by a writers' association in the courts. Meanwhile, some Tiruchengode residents demanded criminal charges against him, and the local police registered a First Information Report (FIR).

Now, a bench of the Madras High Court declared that Mr Murugan does not need to abide by the "peace committee" ruling, and also quashed the FIR against him. Replying to Mr Murugan's declaration of his own death, the order's last line declared: "Let the author be resurrected to what he is best at. Write." After all, the bench said, the author's decision "was not a free decision, but a result of a situation which was created". Most importantly, the bench insisted that there must be "a presumption in favour of free speech and expression as envisaged under Article 19(1) of the Constitution of India unless a court of law finds it otherwise". Thus, arbitrary restrictions on freedom of speech, such as those imposed by the district administration by setting up a "peace committee' to censor Mr Murugan's work, are unlawful. This is a major step forward, and one that will hopefully be studied carefully by law enforcement agencies across the country, which have been too quick to clamp down on writing and speech.

The second instance of courts moving the boundaries of freedom over the past week is the July 8 judgment of the Supreme Court on the Armed Forces (Special Powers) Act, or AFSPA. The court was hearing petitions seeking an inquiry into over 1,500 deaths in counter-insurgency activities in Manipur. The state has been subject to AFSPA, which grants immunity to security forces in disturbed areas, for six decades. The court declared that the army could only be sent out as an "aid to civil authorities", and not for an "indeterminate period". That, it said, would "mock at our democratic process and would be a travesty of jurisdiction". So a prolonged imposition of AFSPA cannot be a substitute for democracy, and for the accountability to the executive that is provided by the judicial process. The central and state governments will have to take this on board; permanent impunity in "disturbed areas" for security forces has been clearly ended by the Supreme Court; the state's use of force has to be proportionate and accountable. Together with the Perumal Murugan order, this judgment shows how a strong judicial system is crucial to check the excessive use of force and the unconstitutional actions of law enforcement agencies.