The Supreme Court’s refusal to quash the first information report against Professor Anand Teltumbde in the Bhima Koregaon case has caused widespread distress. Both the refusal and the distress need to be understood in context, if for no other reason than that the top court takes note of citizens’ expectation that it will play a proactive role in safeguarding fundamental rights at a time when the Constitution itself is in peril.

This expectation has grown particularly vocal and visible (desperate even) since 2017, when the court took an expansive view of its own brief in the right to privacy judgement by “resurrecting dissents” from 1950 to 1976 in cases concerning the denial of personal liberty. The court’s preoccupation with judicial dissents continued through the press conference called by four senior sitting judges (the present chief justice among them), intimating citizens that the court was being undermined. This was followed by the spectacular decision in the Navtej Johar case, where the court burst into poetry and public apology while affirming the right of queer people to personal liberty and dignity without restraint or threat of criminalisation. In the Sabarimala case, in yet another stunning judicial interrogation of majoritarian rule, the court challenged Hindu orthodoxy in matters of untouchability and held anti-caste resistance aloft. Its judgement quoted at length from Savitribai Phule, a development unparalleled in India’s Constitutional jurisprudence.

It appeared like a constitutional renaissance in real time, and there was euphoria, and hope, all around, despite discordant notes in the cases of Judge Brijgopal Harkishan Loya, scholar GN Saibaba and lawyers Surendra Gadling, Shona Sen, Sudhir Dhawale, Mahesh Raut and Rona Wilson, not to speak of murders on the streets.

After all, the judicial dissents and the affirmation of queer rights was part of a larger claim to dignity and liberty by the people of India. The Supreme Court was no caged parrot. It was the institution which was wresting rights for us, the people, in unprecedented ways.

Ruling on a plea by the activists arrested in the Bhima Koregoan case, Justice DY Chandrachud declared on August 29, 2018 that “dissent is the safety valve of democracy. If dissent is not allowed then the pressure cooker may burst”. Everyone appeared reassured, even though the petitioners were placed under house arrest instead of being set free.

In their defence, those arrested or threatened with arrest in the Bhima Koregaon case have cogently demonstrated the flimsy grounds of their arrest, the fabrications in the FIRs against them and bias in the Pune police’s investigation that targeted human rights defenders and set at liberty the Hindutva leaders accused of instigating the violence in the first place.

From creating law and order problems locally to plotting the assassination of the prime minister, the police claimed it had incontrovertible evidence of a massive conspiracy involving the arrested activists. A new label was invented and duly propagated by the caged media – Urban Naxal. In the toxic narrative woven around this label, everything from articulating the Dalit critique of Hindutva or criticising lawlessness and arbitrary government action – demonetisation, campus occupation, violence against civilians in Kashmir, impunity for perpetrators of violence on the streets, Uttar Pradesh’s encounter killings, Rafale deal – was held up as some sinister plot to wage war against the Indian state.

Shifting burden of proof

For a court that has poetically and publicly upheld the right to dissent, the rule of law, the right to personal liberty and anti-caste philosophies as the basis of constitutional morality, this brazen criminalising of dissent should be the simplest to decode. Moreover, in an environment where a repressive executive is acting with impunity, only the Supreme Court can keep it in check. It must since it has an obligation to uphold constitutional morality.

This is why its refusal to quash the FIR against Teltumbde strikes a discordant, indeed jarring, note.

Is Teltumbde’s arrest necessary? Slowly but surely the repressive Indian state has shifted the burden of proof: we are all guilty until we prove we are innocent. Our speech has been stolen from us.

As senior advocate Rebecca Mammen John asked in a personal conversation, “What has happened to first principles of criminal jurisprudence? Why are courts taking an extreme, almost perverse view while assessing evidence? Why are courts insisting that accused persons face trial in cases where it can clearly be seen that the evidence is shaky, perhaps fabricated and false? Why must they insist the accused prove their innocence after facing a long, arduous, expensive and debilitating trial, when the evidence can be thrown out so easily at the preliminary stage?”

Today, we have the paradoxical situation of the Supreme Court finding no criminality in the Rafale aircraft deal despite evidence being brought on record, but ratifying fabricated criminality in Teltumbde’s case. The scales of justice are tilted disproportionately. Given the court has itself recognised the vital role of dissent in a democracy, how does it explain adopting a different standard of proof for human rights defenders?

By this standard, all dissenters are guilty of conspiring to overthrow the government, so the security of the state lies in their incarceration.

Fundamentally, though, is mobilising to overthrow any government a crime? This question is pertinent since we are headed to a national election under the protection – we hope – of the Constitution.

In upholding queer rights, the Supreme Court delineated the principle of non-retrogression. Dissent once upheld cannot be recriminalised. This is our firm belief. If investigating agencies act on the premise that dissent is criminal, there is no recourse for citizens targeted thus, except to ask the Supreme Court to step in and correct a grave wrong by judging the evidence on the touchstone of the fundamental right to dissent. Justice, after all, must be seen to be done.

The FIR against Teltumbde must be quashed. There are no two ways about this. This is our Spartacus moment – Teltumbde stands for every one of us.

Kalpana Kannabiran is director of the Council for Social Development, Hyderabad.