Republic is with the Republic

The idea of the word Republic is not an easy idea. Ancient Bharat has such republics in the form of mahajanpads. However, the modern republic as a political concept owes its philosophy of European thinkers, especially Kant.

So what is republic? Is it term-of –art or is it fluid concepts as far as political science is concerned. Republic is a term of art as it has certain preconditions to exist before a political entity can earn this title. If a political system is to claim and enjoy the privileges of a modern state, it must have democracy, rule of law, equality of all, and at no cost its head can be person who has inherited the government of the state. For example, the United Kingdom is democracy and has rule of law, yet its not a republic because its head of state is queen who has inherited this position from her family. Additionally, a republic is also not possible, if the head of the state or government does not believe in equality or democracy. The idea behind this was that people should have the right to elect their political leader, and this could only be possible if all the participants of the electoral exercise are equal. This is why we have constitution which sets out how these policies would be materialized in real politik. Hence, a constitutional democracy.

A true republic is effective so long it has people who are informed about the actions of the people whom they have given the political power for certain period of time, in our case five years. Or else republic would be just a sham. This gives rise to the need of having an institution, which informs us about the policies and political actions of the leaders involved in policy making. This institution is press. The role of press is crucial and critical, as without it a true republic would never serve the purpose for which it was conceptualized. Press is the back-bone of republic, without it the republic would not be able to stand on its own. A republic must be a welfare state, i.e. its policies are for improving the life and dignity of its people and for providing safe living conditions[NS1] . This is where democracy kicks in, in a republic government must be responsible and representative. A representative government could only be responsible for or accountable to its people, when government is representative of will of people. Hence a democratic government has legitimacy as long as it represents will of the people. Will of the people, would be effective, if people are made aware of relevant information with regard to governmental functions. Will of people is what people think, and what people think is what people know. Hence, institution of press is there as fourth pillar of State. Without a free press democratic system of republic would simply collapse.

Therefore, right to know the action of government and to express the opinion about it, flows from fundamental right of freedom of speech and expression. All actions of government shall be only what is in the interest of public. Hence, a government’s constitutional mandate is to act in public interest, and not something, which is of government’s interest. In other words, governmental interests are public interests and they always converge. If governmental acts are not in public interest or there is inherent conflict between public interest and governmental interest, constitution will always be upheld later. News is a byproduct of freedom of speech and expression. Nothing else can explain the news, that is broadcasted, published or printed by dedicated institution known as press. It is for this reason news is defined as a piece of information on public interest, which is synonymous to governmental functions, and not that information in which public has interest.

Thus, press is duty bound to analyse, examine and inform. News can be of two kinds, one is reporting which requires objectivity from press and another is opinions by experts on ramifications of governmental policies and actions.

The press ensures that raison d’etre of the republic is kept intact, i.e. we choose those whom we want to see as our political leaders. Press plays important role in criticizing the political leaders, bringing out the flaws in their governance. There is hardly any argument with the concept that power corrupts, and “absolute” power corrupts absolutely. Corruption simply put is a conflict of interest of those who are in power with those who have given this power. It is the task of the media to keep tight vigil on this conflict of interest and keep informing the constituent of the republic, i.e. the people, i.e. us.

Maha Aghadi Alliance (MAA) of Maharashtra is facing the aforementioned conflict for themselves, Arnab as representative of the people of Republic of India is taking them on because of their abysmally poor governance and blatant abuse of power and exposing them incessantly to us.

MAA as a legitimate government is tainted because of its stolen mandate. This government is unholy alliance of political opportunists who have robbed the people of their mandate. Therefore, they had resorted to personality management firms whose sole job was to establish that this government and its leader, i.e. CM, is best in the business, of course, it’s a bogus claim. The megalomania of MAA would prove to be its undoing.

A brave man from media rose up to the occasion and started exposing MAA government’s inept administration, political corruption and criminal nexus between police and politicians. Two innocent and unarmed Sadhus were brutally killed in Maharashtra in presence of police and it was hurriedly hushed up as case of rumor killing. What followed next was mysterious death of a rising film star and his ex- manager. These three killings shook the conscience of republic of India and it took another Republic, the media house, to challenge the abuse and misuse of power by MAA.

Undoubtedly, there is substance in the reporting of Arnab Goswami, Editor, Republic and the issues reported were relevant. If they were not (as MAA claims), it was solely Arnab’s prerogative to decide and use his acumen as a journalist to take a call which subject is worth the public attention and of which public of republic must be informed. If people had not liked it, they would not have simply watched his television broadcast. He was getting traction, and that’s what hurt the MAA govt.

Demeanor of Arnab’s may be questionable, if he conducts trial in his shows, he is equally trolled and ridiculed by the public. There are several memes on him, hate campaign against him. Use of public power against a private action of critiquing government is the soul enemy of democracy of any given republic and the principle of equality of all. It is only in a democracy of a free republic where I can dare to criticize our government and not be afraid of any vendetta.

If I have to take name of my CM with certain reverence or be afraid of being framed in cases through bogus FIRs, then I am not living in the republic which gave them the very power they are unleashing against us.

Every single CM or MLA or Minister or PM or MP is my representative, they are there because of us. My representative cannot be my master, your power is in representing our interest, when my interest is in conflict with yours, it is our interest that prevails and must prevail. You have acquired this power because of us. And Arnab has his power because he is the voice of public of this republic. What I long to speak but afraid of expressing it for whatever reasons, in such scenarios he transforms my silence into a voice of dissent.

Arnab may not have governmental power, but he has public duty, he is public voice. His right to speak also flows from constitution, which is equally the source of power of MAA. MAA should not confuse the constitutional power as its personal power. If constitutional authorities, for inexplicable reasons, consider constitutional power as their personal power, then they destroy the republic as “Welfare State’ and transmute it into a dictatorship. No Bhartiya would tolerate it, we will speak, first through Arnab and then through ballot box.

What was legal and constitutional issues that delayed Arnab’s release: At the outset, a common man must understand the distinction between constitutional rights and legal right. All laws are subservient to constitutional law and constitution. If there is conflict between constitutional right and legal right, it is the former that prevails. In order to understand the helplessness of Union Government of India in not intervening in the matter of Arnab, it is imperative here to grasp the constitutional structure of Indian Republic. We have two cardinal principles on which our democracy functions, first is theory of separation of power, and other is federalism. The first means, we have rule of law and a polity, and that we do not have political absolutism (i.e. concentration of all political power at one person or a body of persons). This gives birth to three organs of the polity, legislative, executive and judiciary. These three organs of the polity provide check and balances for each other. Another framework on which Republic of Indias’ polity is erected, is federalism. Given the inherent plurality of our society, we have opted for dual polity structure, i.e. between Union and State. Those two constituents of ‘Indian Republic’ function within their demarcated and constitutionally sanctioned realm of power (see, Art.245, Art246, Art.254, Art73, etc). Trespass into sphere of power of one constituent unit is strictly forbidden by the other, i.e. by Union or by State (Art.245).

Law and order is a subject matter which is exclusively reserved for State. Union has no power to interfere therein, under any circumstances. There is no legal power that Union has, however, union does have a constitutional power, to dislodge a state government under Art.356 on certain grounds. Arnab’s case would certainly not have fallen into those grounds.

Thus, if any remedy, that Arnab had, was to come from judiciary.

Arrest versus disappearance: One needs to understand two different scenarios in order to understand the constitutional angle of this legal case. An arrest is legitimate power of Police under S.41, or S.151 Cr.P.C. for a cognizable offence. Once an arrest is made, the Police is duty bound to produce the arrested person to Judicial Magistrate within 24 hours. In simple words Police cannot detain an arrested person for more than 24 hours, and if they long to do so, they must seek extension in detention from a Judicial Magistrate. Thus, every arrest must conform to the protection guaranteed by constitution under Art.22. These constitutional guarantees are also reiterated under S.57, Cr.P.C, 1978. Thereafter, it is for Judicial Magistrate to decide if the arrested person should be granted custody, or release the person on bail. Another, scenario would be when a governmental agency, say Police or other such armed forces, have picked up a person and have not shown an arrest which they are legally bound to do. Then this is a case of disappearance, as this person does not exist in the records of Police. The person just disappeared, even though picked up by governmental forces, but since they have not shown an arrest by making entries into government record, Judicial Magistrate cannot do anything.

Now, in these two scenarios, arrest and bail are basically legal matters and are subject primarily to legal rights, i.e. right flowing from different statutes, in this case Cr.P.C, 1978. Provisions for bail is given under Cr.P.C. Disappearance is not subject matter of legal right, it is primarily subject matter of constitutional right in the form of fundamental rights. Therefore, an arrested person knocks the door of Judicial Magistrate for his release and goes to Supreme Court in its ordinary Appellate Jurisdiction, whereas representative of disappeared person directly approach Supreme Court under its Original Jurisdiction. In Appellate Jurisdiction Supreme Court is merely a Court of Law, whereas in its Original Jurisdiction under Art.32, it dons the hat of Constitutional Court. A disappeared person through its relative applies for writ of Habeas Corpus and not bail. Similarly, an arrested person applies for bail and not writ of Habeas Corpus. Thus a disappeared person through its legal representative directly knocks the door of Supreme Court or High Court (under Art.226). An arrested person can never seek remedy directly from Supreme Court or High Court for a bail. High Court or Supreme Court can grant a bail only in its appellate jurisdiction and not under its original jurisdiction under Art.226 or Art.32 respectively.

Arnab had not disappeared, he was formally arrested, whether the arrest was legal or illegal, would not impair the right of Police to arrest. Supreme Court, in Joginder Kumar v. State of UP( AIR 1994 SC 1349) case, has laid down the law that, arrest is an exception to the rule of freedom of movement under Art.19. Arrest should only be made when there are chances of fleeing by the accused or tempering with the evidence or intimidation of witness. If these are not the grounds, power of arrest, should not be exercised. Existence of power is one thing and its use is quite another.

Arnab’s case falls somewhere in between legal right and constitutional right, he was being denied bail by High Court, as it directed him to approach to Sessions Court, the appropriate forum of bail. This order was challenged in Supreme Court under Art.136 known as Special Leave Petition. Supreme Court was not sitting in its ‘original jurisdiction’, it was sitting in its appellate jurisdiction. Therefore, writ was not remedy, the remedy was grant of bail as per scheme of Cr.P.C..

Hon’ble Supreme Court saw this arrest from the prism of Art.21 which is fundamental right to life and personal liberty. The Court essentially explained that while exercising power of arrest, which courts have laid down, time and again, that it should be used sparingly. Police exceeded its power to arrest. This created a conflict between legal right of Police and Constitutional Right of Arnab, and as said above, in all such conflict the later always prevails. Accordingly, it was found by the Apex Court that power to arrest under CrPC is subject to law laid down by SC in Joginder Kumar case, and Police exceeded its power to arrest which ended up violating the personal liberty of accused, i.e. Arnab. Consequently, it held that fair probe and trial should be afforded to Arnab, which will be violated if he is not granted bail because facts of the case did not warrant any arrest for fair probe and trial.

SC found that facts of the case were enough to establish that power of arrest was excessive to the extent that it trampled upon the fundamental right of personal liberty which includes dignity of an individual. The arrest was found to be unnecessary considering the facts of the case for which accused Mr. Goswami was arrested. Thus, personal liberty warranted that accused must be granted bail, as investigation would not be affected at all by him being released on bail. Hence, bail was granted.

Thus the Republic won! Republic is inalienable, republic is perpetual and for eternity. Long live Republic, Long Live Arnab who is voice of republic.

[NS1]Added this as Arnab was attacked after he raised the issues of Sadhus and SSR.

Author: Abhishek Mishra

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