Courageous magistrates

There remain sparks in our judicial system that refuse to get extinguished by fear of the executive

Never before has the judiciary been attacked so consistently by the executive as is happening now, both in Parliament and out of it. Yet, there remain sparks in our judicial system that refuse to get extinguished by the fear of the executive. What's remarkable is that these displays of the independence that must characterise the judiciary come not only from the seniormost judges of the country but also from those at the bottom of the ladder, who have everything to lose.

Last week, a judicial magistrate in Pune refused to accept the police's closure report in relation to a case filed against IPS officer Rashmi Shukla in February 2022. The case related to the tapping of Congress leader Nana Patole's phone by Shukla when she was Pune Police Commissioner between 2016 and 2018. The Fadnavis-headed BJP-Sena government was then in power, and Patole was, interestingly, in the BJP till December 2017.

Well, now Fadnavis is back. And the priority of his government has been to undo what the Uddhav Thackeray-led MVA government did over the last two-and-a-half years. The Shukla case concerned Fadnavis directly; he was not only the chief minister when Shukla carried out the phone tapping, but also the home minister. He's now the home minister again, and his ministry refused to sanction Shukla's prosecution. The police, obedient to their political masters as always, closed the case, but the Pune magistrate turned out to be one of those who took her calling seriously. She pointed to the evidence that had already been presented and asked them to continue the investigation.

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Part of the evidence was the signature of the then home minister, Devendra Fadnavis, on the proposal for phone tapping.

A month earlier, another magistrate, this time in Mumbai, had shown similar gumption, asking the prosecution: "Have you been managed?" after they failed to serve a non-bailable warrant against MLA Navneet Rana in a case involving the submission of a fake caste certificate. Ostensibly an independent, the MLA from Amravati is known to be close to the ruling BJP. Yet, not only did the magistrate refuse to give the police more time, but he also wrote to the Police Commissioner and the Lok Sabha Speaker. (The same police had arrested Rana for sedition earlier this year under orders of the MVA government, for threatening to recite the Hanuman Chalisa outside then CM Uddhav Thackeray's house!)

Human rights activists have always complained of the excessive influence the police enjoy among the lower judiciary, pointing to the routine manner in which police remand is granted, even when the accused bear obvious signs of injuries sustained in police custody. The general belief is that only in the higher judiciary do you get the kind of hearing that gives you a chance at justice. Then, there's the scrutiny under which magistrates function, both of the government and the higher judiciary. Which magistrate would not want to be a judge?

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But while these factors have always been there, an additional new and frightening factor is this executive's obvious desire to curtail the judiciary's independence.

Given this background, it becomes an act of courage for a magistrate to pull up the police. Surprisingly, such acts continue to take place. The February 2020 Delhi riots were projected as a "conspiracy" by the Union Home Minister himself in the Lok Sabha, its investigation monitored by him personally, he declared. Yet Delhi magistrates didn't hesitate to grant bail promptly to students arrested for the riots, pointing out that the evidence did not substantiate the police's allegations. It was only after the anti-terrorist UAPA was invoked that bail became difficult. The Delhi Police, who report directly to the Home Minister, were directed by magistrates to arrest rioters they were obviously shielding, and asked why those arrested on bailable offences had not been released.

A Delhi magistrate also granted bail promptly to journalist Mandeep Punia, arrested for last year's Republic Day tractor rally organised as part of the farmers' protests, that saw violence at the Red Fort. Describing the violence as "anti-national', Delhi Police arrested the late actor Deep Sidhu twice for the same offence, the second time immediately after he'd got bail, an act described by a magistrate as "vicious, sinister...playing fraud with the criminal process."

In BJP-ruled Karnataka, after police refused to file an FIR against a Hindutva activist for his tweet calling for a boycott of Muslim vendors, a magistrate ordered the police to investigate it as a cognisable offence, for which an accused can be arrested without a warrant.

Given that a Principal District Judge was among those who allowed the release of Bilkis Bano's rapists, we must be grateful that some of the most vulnerable members of the judiciary continue to uphold the rule of law.

(Jyoti Punwani is a senior journalist)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.