Not defending civil society judiciary's biggest failure: Advocate Indira Jaising

The judiciarys inability to protect civil society from persecution is its biggest failure, writes senior advocate Indira Jaising in her new book The Constitution Is My Home, alleging that political opponents, activists and human rights defenders are being systematically targeted through criminal law.In the book, released on Wednesday, the author described civil society as the sole defender of free speech and fundamental rights, adding that the government has sought to suppress it through measures such as Enforcement Directorate probes, cancellation of Foreign Contribution Regulation Act licences, and tax raids.The judiciary has not been able to defend civil society from persecution.

The judiciary's inability to protect civil society from persecution is its ''biggest failure'', writes senior advocate Indira Jaising in her new book ''The Constitution Is My Home'', alleging that political opponents, activists and human rights defenders are being systematically targeted through criminal law.

In the book, released on Wednesday, the author described civil society as the ''sole defender'' of free speech and fundamental rights, adding that the government has sought to suppress it through measures such as Enforcement Directorate probes, cancellation of Foreign Contribution (Regulation) Act licences, and tax raids.

''The judiciary has not been able to defend civil society from persecution. This, for me, is its biggest failure. Nothing in the Constitution is more precious than life and liberty, and both are today under threat, thanks to a dysfunctional or compliant judiciary,'' wrote Jaising, who is also a human rights activist.

She alleged that criminal law was being abused ''not just in isolated cases but as a policy of governance and has been one of the defining strategies of the current government''.

''Prosecutorial discretion has been all but outsourced to the party in power. A new vocabulary has replaced legal language: Anyone opposed to the ruling ideology is recast as an enemy of the State, labelled an urban naxal or anti-national to strip them of legitimacy,'' she added.

Referring to the prosecution of late Delhi University professor G N Saibaba under the Unlawful Activities (Prevention) Act (UAPA), she criticised judicial observations that shifted the focus of criminal law from ''overt acts to beliefs and ideas''.

She also criticised the use of the UAPA and the sedition provision under Section 124A of the Indian Penal Code against activists and human rights defenders in cases linked to the 2020 Delhi riots and the Bhima Koregaon violence.

''Sedition has no place in a sovereign democratic republic,'' she wrote, arguing that dissent could not be criminalised unless accompanied by violence.

Section 124A of the Indian Penal Code (IPC), commonly known as the colonial-era sedition law, criminalised any acts, speech, or expressions intended to incite hatred, contempt, or disaffection against the legally established government. Under India's current criminal justice framework, this provision has been repealed and replaced by Section 152 of the Bharatiya Nyaya Sanhita (BNS).

She further noted that although the Supreme Court had kept the sedition law in abeyance, ''analogous provisions'' in the UAPA continued to be invoked against activists.

''Had the Supreme Court struck down the provision, we would not have reached this point,'' she wrote.

Jaising further referred to the Bhima Koregaon case, where those associated with the Elgar Parishad event in Pune in 2017 were later accused under sedition and anti-terror laws.

She alleged that provisions relating to promoting enmity between groups and outraging religious beliefs had also been used against those protesting caste violence.

''The Constitution Is My Home'', based on Jaising's conversations about her 'life in law' with writer-publisher Ritu Menon, explores some of the country's most consequential legal battles and offers ''sharp observations on the present, marked as it is by rising Hindu nationalism, a judiciary in retreat and a democracy growing brittle by the day''.

It also reflects on the cases and causes that have defined Jaising's career, including Mary Roy's fight for equal inheritance; Olga Tellis case, which recognised the right to livelihood for pavement dwellers; Shayara Bano and the challenge to triple talaq; and the compensation case for the victims of the Bhopal Gas Tragedy; and the Sabarimala case.

The book, priced at Rs 699, is currently available for purchase across online and offline stores.