 Hello, everybody. Welcome to the leaflet. We have today with us Professor G. Mohan Gopal, a former director of the National Law School of India University, Bangalore, and a former director of the National Judicial Academy, a very renowned scholar. He recently wrote a very thought-provoking piece after the death of activist Tan Swami, in which he made some very interesting and innovative points. And basically, he asked for the review, an independent review of the role, of course, in Father Stan Swami's death. Dr. Gopal, I'd like to start with a point that you make in your article, which I believe nobody has made, which is narrative independence. What do you mean by narrative independence? Do you mean that the courts often get swayed by the public narrative or even the narrative built by the government when dealing with cases involving allegations of terrorism? No, I think let me start by reflecting for a minute on what is a narrative. So there is a whole field called narrative psychology. And there's a famous quotation from one of the thinkers in that field, which says, the world is not made of atoms and molecules. The world is made of stories. And so narratives are very fundamental to the way in which we understand the world and relate to the world. At an individual level, as individuals, as groups, as institutions, our perspectives are shaped by narratives. So that there is a narrative is an essential part of humanity as it is to breathe and unavoidable. The question is, what is the narrative? And are we critical about the narratives that control and influence us as human beings? That's the first point. The second point is the law as a discipline is actually a method of thinking about and interrogating narratives and making sure that narratives are actually grounded on facts. And the evidence acts very beautifully describes facts as things or a state of things or a relationship between things that are perceptible by the senses or a mental condition of which we can be conscious, which means that the law provides a requirement as a matter of discipline that we must question whether the narratives are based upon things that are perceptible by our senses, identified by going through the exercise of saying, okay, who has perceived this fact, not who imagines this fact or speculates this fact. So what is not perceptible by the senses such as suspicion, speculation, superstition is not admissible in court as a fact and therefore cannot be the basis of legal decisions. And therefore we have two things. Narratives, which is a reality, a psychological reality and a social reality. And the other is we have a technology for making sure that these narratives are actually based on fact, meaning things that are perceptible by the senses or perceptible to others, which are objective. And the word objective actually comes from word orb, which is the same orb as an observe, a thing. And the active comes from what is in front of you. So objective means, which is objectivity is the heart of judging and the heart of the legal process. It is that you should only make decisions based on objects on things that are perceptible to you and that are independent of your subjective perception, independent. Subjective is what is under your control. Objective is not what is not under your control, not manufactured by you. So you take all this together. We have narratives and we have a technology called law to protect us from narratives from false narratives, because that's a big risk to us that false narratives are constructed. So against this background, what is happening all over the world is that the, you know, that one party or another and the other perhaps in court presents narratives saying this person must be sent to jail or no, no, I'm completely innocent. I've done nothing wrong. These are all narratives. So how does a court find its way forward in the midst of these conflicting narratives by focusing on facts and evidence? And those facts must be facts which are not under the control of the judge or the court. Then it's subjective. When it is under you, what you observe is under you, under your control, because then you can shape it the way that you want it. Whereas if it is objective, it's outside you, then it is something that you have to take as you perceive it rather than something you can control. Therefore, the starting point is to say that we must be independent of narratives using the methods and technologies given to us by law. The best illustration of that is something I referred to in that piece which is a very, very tough case. A case which I think is similar to involving terrorism, allegations of terrorism, accusations of terrorism, of the worst variety in the sense of involved, you know, associated with the murderous attack on the World Trade Center in which thousands of people died. This is a case called Hamdan versus Rumsfeld where there is an associate of Osama bin Laden, no less, direct associate, a part of his team who is being tried. And the narrative of the George Bush administration is that this man is a very dangerous man and he has killed people, he has been associated with killing people. He will do that again. And so just as John Paul Stevens who's writing this judgment, judge of the U.S. Supreme Court, he's no more with us, but at the point he wrote this judgment in 2006, he had already been a judge of the United States Supreme Court, not other courts, just of that United States Supreme Court for 37 years, for 37 years, just a judge of the U.S. Supreme Court. So you can hardly imagine a judge with greater experience of the highest level, the apex court of a country than him. And then he writes something which I write in the article and I'll just take one second if you permit me to quote it because that will answer your question. Just as John Paul Stevens writes, we have assumed as we must that the allegations made in the government's charge against Hamdan are true. So he says, look, I accept your narrative as true. We have assumed moreover the truth of the message implicit in that charge, namely that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians and who would act upon those beliefs if given the opportunity. It bears emphasizing, well, that the next is a procedural point, but in undertaking to try Hamdan and subject him to criminal punishment, the executive is bound to comply with the rule of law that prevails in this jurisdiction. This is a declaration of narrative independence. I'm not questioning your narrative. He says, I accept your narrative. But the rule of law has to be independent of a narrative. It can only be based on facts, not on narratives or stories. Now, this is the background to it. What we are facing in our own country is basically unquestioned narratives which are reinforced in the media, which are reinforced in the public consciousness that feed into the fears of the people. And I'm sure there are elements of truth in the narrative sometimes. I'm not examining that. But ultimately, these narratives are painting Stan Swamy, whose life has been an open book for his entire life, and various others as the George Bush administration did as terrorists. Yeah, you quoted from this case called Hamdan versus Ramsfer. This reminds me of a movie I recently watched, a monetarian. It's on Amazon. It's a very interesting movie again based on a similar case where Salahi, a monetarian national, he is kept in confinement in Guantanamo Bay for almost 14 years before released. A lawyer, a criminal defense lawyer called Nancy Hollander, played by Jody Foster, she makes a very interesting point. She says that I'm not just defending Salahi. I'm defending the rule of law. The constitution, she says, does not come with an asterisk at the end, which says terms and conditions apply. So in that case, I just took this conversation forward. In that case as well, he was acquitted. And the U.S. District Court Judge James Robertson, he said, Salahi may well have been an Al-Qaeda sympathizer, but the government has failed to adduce evidence to show that he was part of the Al-Qaeda's command structure, and he was acquitted. Now, that's a very brave judgment. Now, you talked about Hamdan. I spoke about Salahi judgment. Recently, Delhi High Court also gave a very brave judgment while granting bail to a couple of student activists. And immediately there was a pushback and there was a backlash. And one would say that there was also a pushback by the Supreme Court of India, which almost did the operative part of the judgment barring the fact that the accused were allowed to be out on bail. Now, while it is one thing to say that there should be narrative independence, but it is entirely another thing when the judges in their individual capacity or sometimes acting as a part of the bench, they do uphold narrative independence and they are faced with backlash. So what do you have to say about that? Because judges obviously are part of the same system. How do they cope up with this kind of pushback by the system and by sometimes by the society at large? Let me start by recalling that a very respected senior judge once took a gentle objection when a reference was made to an honest judge. He said, look, every judge has to be honest. And you can talk about dishonest judges, but you should not qualify a judge as an honest judge. Because if he's a judge, he has to be honest or he's dishonest and he's not a judge. So similarly, I recall that because when you said brave judge and brave judgments, right, there's nothing courageous. This is there being appointed and paid very handsomely and given lots of privileges and benefits and enormous power in order to uphold the rule of law. So there's nothing brave. It's the first and most primary thing that a judge has to do is to understand and uphold the rule of law and be accountable for it. And what does the rule of law involve? One of the things it involves is basically to make sure that the standards and procedures laid down in the law are applied to reach determinations of courts and uninfluenced by powerful narratives that the state or the defense may mount in front of you. For example, that this defendant is unimpeachable. I once sat in a district court in the country where someone had been arrested for murdering the death of a woman in his house for murdering her. It was a father-in-law. I don't remember the details, obviously. But the defense narrative, which I heard myself sitting in that trial court asking for bail for this man, the court was not influenced by that narrative. But the narrative was, sir, he's a Hindu. A Hindu cannot kill his daughter-in-law. This was a narrative mounted by the defense. And the judge maintained narrative independence and said, so that's not relevant to the question whether he's entitled to bail. So I think, first of all, we must realize that we cannot lower the bar so much and say these are brave judgments. The Delhi High Court judgment is a correct judgment. It's a correct judgment which interprets and understands the law correctly and painstakingly explains why it reached that decision based on law. It could not have reached any other decision. Now the Supreme Court is yet to examine that judgment on the merits of the law. They've made some interim orders. The question that the issue is that it will not apply as a precedent. I'm not sure what the legality of that. I've not seen the order on that. And if there is such an order, I'm not sure what the legality of that is because the principle of stare decisis, namely that it will bind the courts within the jurisdiction that it has, cannot be amended by a dictator of the Supreme Court from the bench. It cannot be because it is part of our non-negotiable, non-derogable values that on the basis of which the rule of law operates that when a high court or a Supreme Court lays down a judgment, the ratio decedent die, the ratio decedent die is applicable to the courts over which they are supposed to apply. And so I think that raises lots of issues. So yes, there is a black backlash, but the sad thing is there is a backlash against normal, correct judging. And it is as if the narratives are trying to overwhelm the rule of law and sweep aside the rule of law. And the narratives must be the basis of judicial decision-making. So independence of this narrative, as exemplified by two normal judgments, not brave judgments, one by Justice John Paul Stevens, and there are many others, but as illustrations, one by John Paul Stevens, one by the daily high court are normal judgments that we expect from every single judge. And to be guided only by the processes of judicial decision-making laid down by legal principles and statutory provisions and not be influenced by the narratives presented by either side. And that is a very important element of judicial independence, which in our country in the current circumstances we really need to question very carefully the narratives are coming in the way of the rule of law. I believe they are in many cases from what one reads in the papers, but it requires careful examination. Taking this thread of narrative independence forward, you talked about Handan's case, I spoke about Salahi's case. At least there was an assertion there by the government that they were part of the Al-Qaeda network. Al-Qaeda carried out terror attacks, including 9-11, which killed hundreds and hundreds of innocent people. Also in the case of Delhi riots, there was violence and at least 50 people were killed. But Stan Swami's case stand on a different footing because even if the narrative is taken on its face value, the allegation is not that he triggered some riots. The allegation is not that he instigated some conspiracy which led to bomb blast. The allegation was merely that his computer had certain communications or files which may lead to the possibility that he was part of some wider network of Maori sympathizers. So it was kind of a very weak case in terms of a public narrative which often the government builds against terror cases. So even in this case, an 85-year-old priest arrested on the basis of what many call flimsy evidence, why were the courts so cagey? Why were the courts so reluctant to grant him bail? I want to ask you why there was just complete, which you call complete judicial abdication. The former Delhi High Court judge, A.P. Shah, has also referred to complete judicial failure. Why was there such complete judicial failure to even accord him bail? I think we should distinguish two things. One is the evaluation of the material presented against a particular individual. Let's say in this case father stands for me. Versus assuming that the material is rich and abundant, but fiction, rich and abundant fiction. Surely you're not suggesting that then there was a basis to deny him bail. It is not the thickness or thinness of the fiction that should decide whether you get bail. The question is how should you evaluate that evidence? What are the judicial standards on evaluating that evidence? Because if you say that there was hardly any allegation against him, I don't think any of us have... I've not seen the actual, you know, the submission to the court, the evidence or the charge that was given to the court. And let's say you're right and it was very thin. But are we suggesting to the government then that they should sort of use more imagination and creativity and submit a thick set of false facts against people and that would justify bail? No, we are not. So what we should really look at is, what does the rule of law require a court to do in deciding to deprive someone of his liberty and put him in jail? So we have the preambular assurance of liberty. We have Article 21 that gives us the fundamental right to life and personal liberty. We have various elements of Article 19, the right to be able to speak without being arrested and thrown in jail as a result. That's a restraint on speech and expression. So we have multiple protections which we now know are all integrated, mutually supportive. And there's an architecture of liberty and freedom in the Constitution and that is being attacked. Now the Constitution sets out very clearly and specifically the grounds under which or authorizes a setting out of grounds under which liberty can be deprived. Equality cannot be, no restriction can be placed on equality or dignity. But on restrictions, reasonable restrictions on liberty can be provided. Now this happens at two levels. One is at the level of the law. Are the restrictions authorized by law reasonable or not? And do they fall within the permitted parameters of restrictions or the requirement that there must be a just, fair and reasonable process of deprivation of liberty as required by Article 21 and so on? Now maybe a legislation like UAPA has so far passed muster although I personally believe that it is unconstitutional. But it has passed muster with the judiciary. It's not been declared unconstitutional. So that's one level. The second is when it is applied to the facts and circumstances of a case, when it is applied to an individual and there are specific allegations made against that individual, what is the responsibility of the individual court? So you're dealing with a statute that is not yet found to be unconstitutional. It's part of the law of the land. Does that mean that the statute then steps in in the place of the entire constitution and takes away all your constitutional rights and simply complying with that constitution is, sorry, with that statute in its generality, guarantees protection of your constitutional rights? And am I, I mean, the clear answer in all our jurisprudence and all over the world is no. In fact, the opposite. It is in the application of these laws and to the particular case that the protection of the constitution, in fact, it is only in those cases that the protection of the constitution actually applies and is relevant. Otherwise, it simply remains on paper. It's only when you are detained that the constitution kicks in. And the statute even then cannot conflict with the constitution. So that's when Stan Swamy's rights under 21, the right to life and personal liberty under 19, kicks in when UAPS enforced is not displaced by UAPA. That includes his right to bail flowing directly from his right to liberty under article 21 and his right to speech and expression to engage in activities, his right to association under article 19. So the individual court, not only judge but the lawyers who are handling this case must protect the constitution and subject the evidence or the charge before that to the constitutional test, not only the statutory test, the constitution is a constant presence everywhere, even in our private spaces. It is constantly there when a woman stands up in the middle of the night at home and tells her husband, you will not beat me. Invoking the protection of women against domestic violence act, a very revolutionary and wonderful piece of law that Madame Indira Jaising led when it was introduced in this country. When a woman says that to her husband, she's asserting a constitutional right, not only a right under the protection of women against domestic violence act, that's only a fleshing out how to protect those constitutional rights, not replacing them. And the constitution is a constant presence protective presence in our life, our fundamental rights and the judge is the guardian of that protective presence and the enforcer of that protective presence. So frankly, the quality of how many charges they had against Stan Swami is really much less relevant than the fact that they had no right under the, these restrictions were unconstitutional and the UAPA must be read subject to the constitution. The constitution should not be read subject to UAPA. The right to bail must be read subject to the constitution. The constitution cannot be read subject to the UAPA right to bail and that would be a very, I think, wrong and very short-sighted view of looking at the rights of people and that's where the failure is taking place. The relationship between statutes and the constitution principles of law, what we call use-cogens, parentary norms which are globally accepted as non-derogable and non-violable including the rule of law. And I want to say that actually the rule of law is what gives us protection from fear from fear and one of the most important causes of fear and terror is being ruled arbitrarily objectively by armed and powerful people who will engage in violence against you and this is the great fear of most individuals and so when you violate the rule of law you are actually causing fear and terror in the minds of people and that is itself in itself, violation of the of the rule of law in itself must be seen as an act of creating terror. In other words terrorist act to create terror in the minds of people because ultimately all these laws against terrorism are intended to protect the people from having to live in fear and terror that is a real purpose not just to protect the officials of the state and so the protection of the rule of the violation of the rule of law is usually the first objective of terrorists destroy the constitution destroy the rule of law and the rule of law, violation of law cannot be the basis of protecting law so the the Stan Swami issue raises a very fundamental question was the rule of law breached was the constitution breached that's what we want to know not simply whether the charges were strong enough or not we know the narrative the public narrative against him was very strong he was seen as like he was painted as some kind of mastermind behind violent extremist activities and that led perhaps may have contributed to the manner in which he was treated in prison or his right to jail bail was was viewed and the the prelier of the law to protect him so yes the reason I pointed towards the perceived sorry the reason I pointed towards the perceived flimsiness or the perceived thinness of the charges or the evidence against Stan Swami is because I wanted to ask you a pointed question is it the UAPA and the string stringent provisions of UAPA like section 43 D5 which makes bail unlike in general criminal trial an exception and not the rule these statutory provisions standing in the way of courts higher courts or even the supreme court from letting people out on bail it takes you to the question of Justice Krishnaya's famous dictum bail not jail why did he say that he didn't anchor it on a particular statute or the criminal procedure court he anchored it on constitutional principles the presumption is that there is that bail should be given and jail should be required only in very exceptional circumstances and even in the statute in section 41 of these criminal procedure court there are the well established principles on when custody is necessary and they basically have to do with interference interference in one form or the other with the judicial process and the trial process namely person may escape may flee, may interfere with the evidence may put duress on the witnesses or second ground so one ground is interference with the judicial process the second ground is protection of the accused himself or the person being kept in custody or the protection of someone else who may be in danger of this person is released there can be no other ground to detain someone it is not the question is really not only the right to bail but real question for the judges the court is the state the executive the executive is demanding that restrictions be placed on the liberty of a citizen is this a permissible restriction or not under the law and if does not meet the standard of permissible restrictions that person cannot be detained and the principles of what is permissible restriction on liberty are you know M&A recognized the recognition of these principles M&A in the constitution not in the UAPA and the UAPA must can only be constitutional if it is read subject to these constitutional mandates and provisions so if you look at that one very big on which is happening routinely in our country and I have written about this also is the idea of custodial interrogation many judgments also say that some custody is required so that the person can be interrogated this is a blatant violation of the constitutional right against self-incrimination a person is not expected to help the case to build a case against yourself the state has to build a case against a person independent of that person that is a right against self-incrimination you have not obliged to help the prosecution build a case against yourself and it is because that is seen as possible that you are tortured because you are seen as responsible to prove that the suspicions against you are right and so you are forced sometimes to speak the untruth just to stop the pain of torture and this torture includes putting you in jail so I take the view yes there is a separate question if you are in custody on grounds these two broad sets of grounds that are that permit the state to people in custody for protection and for protecting the judicial process then the question is can you be interrogated including your custody for other permitted grounds and the courts have said yes you can you can't say look because I am in custody I cannot be interrogated that is not a violation of your right against self-incrimination but with adequate safeguards including no torture and so on and no compulsion no testimonial compulsion you can be interrogated but can you be interrogated just for the purposes of questioning you so that you will be brought under pressure mental pressure psychological pressure you will be humiliated in society so that you will then agree with the police and the prosecution that is unconstitutional and absolutely impermissible it is only a basis for producing false evidence that is partly responsible for the large amount of acquittals that take place because they rest on on evidence constructed out of the pain and suffering of people just to relieve themselves of torture of one kind or the other and ultimately they don't stand up in court because they are not based on a shred of objective evidence so I think what we have to the question we have to frame is did the state in Stan Swamy's case have a right to restrict to place a restriction on his right to liberty and the answer no he was not a threat to the judicial process he was not a threat to engage in violence or illegal activities against the state to our knowledge they have not produced any evidence of that or to interfere with witnesses and if that was a threat then as has been said in some judgments appropriate conditions on bail could have been imposed to guard against these these risks but was therefore there was no constitutionally permissible restriction regardless of what UAPA may say or may not say to place a restriction on Stan Swamy's right to liberty under article 21 sorry I can't hear you I think you are muted. Yeah Professor Gopal I want to ask you has the higher judiciary especially the supreme court of India tied up tied itself up in knots by on one hand upholding the constitutionality of this extraordinary anti-terror laws like UAPA, TADA POTA National Security Act and on the other hand sometimes they try to fashion out remedies and judicial sucker by like they did in the case of K energy when they said that right to speedy trial under article 21 cannot be trumpeted by special provisions like like UAPA is there a paradox here like as long as these statutes continue to be in you know be completely you know valid the the judiciary and the different courts will find very difficult to somehow strike a balance between the constitutional guarantees and what the state is trying to achieve by denying bail and by imposing on risk conditions on people charged with anti-terror law provisions. No the question of constitutionality of statutes is not a new one it's a perpetual question it should be a perpetual question we have the right to challenge the constitutionality of legislation and we will continue to do that but that should not be mixed up with the question of the constitutional protections continuing to be available for a in the implementation of a law that has not been found to be unconstitutional even if a law has that which which is which has not been struck down as being unconstitutional is applied. The constitutional protections are meant to apply only in the operation of the laws so if you take the view that the constitutional protections are not independent sources of rights regardless of the statutes in particular instances then basically you know you are saying the constitution is meaningless so we cannot rely only on declaring the statute constitutional at that macro level as our constitutional protection and then we suddenly shift from being protected by the constitution to being protected by UAPA and its language and this I believe is really a hangover of our colonial jurisprudence where there was no right in the constitution it was entirely statutory if you take the 1935 act the 1919 act there was a judiciary in the in the in the 1935 act it consisted of the high court in the federal court but there is no there are no constitutional rights for people in the 1935 act so you are purely statutory in your judging but but we must realize that the constitution applies in the sub statutory space not in the suprastatutory space as far as the citizen is concerned the suprastatutory space is simply an argument between legislature and judiciary in terms of is legislation be enacted constitutional or not and lawyers all of us have an active stake in that as far as the man or the woman on the street is concerned it is in the sub statutory space that the constitution lives or dies in its application in its application to protect us against sub statutory state action that brings me to a larger question which is of the large number of under trials languishing in the jails of a country in a conversation offline you refer that 67% of the total prison inmates are under trials that is a human tragedy of great proportions because all of these individuals have families have children and wives many of them would eventually get acquitted but after a tremendous cost after paying a tremendous cost every person who is in jail is in jail because somewhere the judiciary has not exercised its power to granting bail or has failed to uphold the constitutional rights in the article also you mentioned that granting of bail is a constitutional right or securing bail is a constitutional right and it's not an act of judicial grace so I want you to further dwell upon the role of judiciary today which I think is not stressed upon enough especially because it's a close system lawyers and judges they are part of the same system as a lawyer one cannot be critical of the judiciary enough to bring the focus on the failure of the judges in upholding constitutional rights but I would like you to dwell upon this point that once a person has been arrested for 24 hours his liberty is not in the hands of the police his liberty is in the hands of the judges and the judiciary so where does the judiciary stand in terms of securing freedom for a large number of people who get arrested sometimes on wrong charges I agree when we spoke just before the interview what I said was that I did say that the inmates of India's prisons are under trial that's a very shameful statistic and I refer to it as a humanitarian crisis a humanitarian crisis which is not getting the priority that it deserves and there are some very small number of people who have been in jail for over 10 years as under trials and I think that is something that can be easily solved there are some conundrums in law that are responsible for that and that can be resolved through judicial interpretation but I also said to you that every person in this country who is in those prisons for prisons or is in custody for more than 24 hours has been put there by a judge so we cannot blame the police the police is only asking for detention but and custody all these 67% of India's prison population are there effectively judges have put them there they have decided that they will go to jail that they will be in jail do they have the power to do that do they have the power to override the constitution rights of people the answer is no they don't have the rights to overcome the constitution rights of people and yes they do have power to put someone in jail and restrict their liberty but only on the basis of grounds that are constitutionally defined and apply through legislation not legislatively defined excluding the constitution so it is a responsibility of every trial court every judge in every court to understand that their role is a primary role is a role of defending constitution rights this was very beautifully explained in the 117th report of the law commission of India by the then chairman of the law commission of India Justice D.A. Desai Justice D.A. Desai where he said and I am virtually quoting him from memory it is not in front of me but it is almost an accurate quote he said the Indian judiciary faced an enormous challenge of transforming overnight upon the enactment of the constitution from being in colonial times an extension of the law and order machinery an extension of the law and order machinery to becoming uses words a sentinel on the ki vive a sentinel a guard on the ki vive means on the alert of the fundamental rights of of private citizens so suddenly overnight to use the word that justice desai used the judiciary was trained to being a defender of the powerful against the powerless to becoming a defender of the powerless against the powerful complete inversion of the role and it is on that basis that he said set up judicial academies to help judges make this transition credit to the judiciary and I have been privileged to be a part of that effort India has one of the best networks in the world of judicial academies and regular programs of judicial academies and a lot of conversation that is taking place that is very recent in the last say 15, 60 years or so that this has happened at the scale but that conversation is important to bring about this transition so you ask the right question what is the role of the judiciary the role of the judiciary is actually to uphold the rule of law and protect and safeguard the rights of the powerless against the powerful because from a physical point of view there is no need for a judiciary the state the executive can arrest people can you know and put them in jail or kill them they have the physical means to do that in any case they are the ones who are physically arresting people and putting them in jail they don't need a judiciary for that so why do we have a judiciary we have a judiciary simply to audit whether the state's actions are compliant with the constitution or not and whether they violate constitution rights or not it is this audit function that and then unlike a mere auditor a guardian function once that audit shows that the constitution is violated and constitutional rights are not being protected then they have to enforce those rights that is their limited role and the idea of rule of law and protection from arbitrary personal rule by individuals is a central part of the constitutional scheme without which everything will collapse and a central part of that is to make sure your determination is based on objective facts not on false narratives or exaggerated narratives but on actual facts and now I think we should perhaps turn to the question which is what is the standard of facts necessary as part of your question on the role of judges to put someone in jail what is the standard I can't hear you before we do that Dr. Gopal I would like to bring the question of selective prosecution a point that you again made in your article this is again an argument that I have not seen often been made by either academic scholars or by lawyers and you write that this is a threshold issue and should have been a threshold issue in the case of Father Stan Swami because you believe that he was singled out for prosecution by the government to stop him from supporting poor tribals at a point that he himself made before the court so you say in your article that this is the defense of selective prosecution that the prosecution is because it is based on arbitrary or prohibited grounds and should have been dealt by the judiciary as a threshold issue because that could have meant just quashing the entire case now there are many such cases including the case of Delhi riots where student activists have been court and court framed there are other cases where lawyers, scholars academicians they have been court and court framed in cases of sedition other national security laws so and they have been timing again pressing that they have been singled out because of their views so you believe that the judiciary now should take these cases and decide the issue of selective and false prosecution as a threshold issue and does the constitution permit that? Yes I think that those are very very important issues they are slightly distinct issues the issue of the jurisprudence of selective prosecution is quite well developed in other jurisdictions because it is a very big problem and the selective prosecution is actually a crime to prosecute someone on selective grounds for which the executive and the police should be accountable what is selective prosecution it is when there is prosecutorial discussion and that is legitimate but when prosecutorial discussion is exercised on grounds that are prohibited by the constitution or by the law such as race such as political beliefs and ideology or political opposition then the entire the entire prosecution fails and must be set aside this is the judicial standard the famous case on this is a 1886 case in the US called YICWO the Chinese name YICWO pertains to the targeting of some Chinese individuals for violating laws against the operation of certain businesses in in New York so the prosecution was assailed on the ground that we have been singled out because we are Chinese and the in this very famous case the US Supreme Court said that if the law even if the law appears to be impartial and fair on its face if the law is applied and administered by public authority with an evil eye and an unequal hand so as practically to make unjust and illegal discrimination between persons in similar circumstances material to their rights the denial of equal justice is within the prohibition of the constitution so this is a violation of article 14 you cannot apply the law with an evil eye and an unequal hand selecting people because of their political views their activities their coming the way of corporates taking over land these are not things that I said I said these are these are claims made I am not saying that that's true or not but I am saying Stan Swami made these claims that I am being treated I am being singled out and those claims should have been enforced now it should have been evaluated now are these claims new to Indian jurisprudence no because I can tell you without revealing the name without his permission because I don't have his permission when I wrote this an article on selective prosecution in a national newspaper I got a personal letter from one of India's top most most respected most experienced lawyers and he wrote in that saying look I am so happy to see the reference to Yikwo after a long gap because he said this case Yikwo was often cited by and then he named another very senior lawyer who is no longer around and said this so this was frequently cited and referred to in the early days of our republic in the supreme court which means that the supreme court and the judiciary was very alive to the risk of selective prosecution that is people being singled out for illegal and unconstitutional grounds for prosecution but somehow that's fallen by the wayside and prosecutorial discretion prosecutorial discretion is simply not being examined or questioned as a threshold issue there are the issue very rarely the issue of false evidence of false prosecution is taken up after the trial is over and acquittal of these charges of charges are a prerequisite for that for that matter to be taken up whether someone was framed or falsely charged is only taken up now after acquittal is over by then many years have passed all the damage has been done and given that there are many cases where convictions are reversed on appeal it is also quite illusory because you are deprived of your right to protect yourself against false prosecution and framing simply because a court has wrongly acquitted you and it will take another many years before you know that it was wrong acquittal so therefore what the standard the legal standard rule of law standard requires the constitution requires is that any reasonable complaint false of selective prosecution selective prosecution discriminatory prosecution must be examined as a threshold issue equally the charge of framing framing must be examined as a threshold issue because if the answer is yes a person is being selectively prosecuted yes a person is being framed with false charges then that prosecution has to fail that you cannot go on with it is a criminal based of public sources to go on with a trial which is by selective prosecution of framing it is a fraud on the public of this country so it must be taken up as a threshold issue and determined before the main trial is taken up after being cleared of the doubt the suspicion on whether the prosecution is acting illegally or not because that is again what the constitution requires so this is an issue that has simply not been given the attention that it deserves and we are being robbed of our rights so that why even the police the situation is such that today someone goes and finds us makes a complaint to the police and the police writes it up as an FIR making the most ridiculous ridiculous charges like we saw when just Chandruchu released this person that he posted something in the social media and then a complaint was launched FIR was launched under national security law and for two odd months he was put in jail so now it seems like a police complaint a bare police complaint by any random person is enough to put you in jail and have charges against you and a trial against you and take before you know it 15, 20, 25 years of your life when all of society thinks that you are some kind of criminal because you've got criminal charges against you and then politicians make speeches saying look he's on bail even if he's on bail he's basically implying that he's a criminal so the situation is completely the rule of law has completely failed we are put into the power of random people the ability to initiate a prosecution against you by simply making a baseless unsupported charge which is then converted into an FIR a case is lodged and then there is no stopping the strain until some court somewhere if and when some court has the sense of responsibility to equity of these charges so yes we must put the focus back on the responsibility of the judiciary to protect us against selective prosecution and against framing as threshold issues and we must demand that and we must say that a failure to do this is a violation of the constitution and the violation of the rule of law connected with these twin issues of selective prosecution false prosecution and selective prosecution and framing let's say they are all part of you know false prosecution is linked to those things but what we are really talking about is framing and selective prosecution as an interesting time. Right so connected with these twin issues is the recent disclosure that some of BIMA KOREGAM accused were on illegal surveillance and their phones were perhaps compromised through a Pegasus spyware software which was only licensed to government entities including government of India do you think that further strengthens this argument that many of these accused were politically targeted and were already put on the watch list of the government they were put through a legal surveillance. Yes I add without doubt without doubt it does and the fact is that governments all over the world without probably any exception engage in selective prosecution and engage in framing and the question is what how do we protect ourselves against it and who is responsible within the state to protect us against that or is that going to be reduced to a subsidiary issue or will the allegation that I am being framed get the priority that it got when justice Ranjan Gogoy as the sitting Chief Justice of India said I am being framed he called the Chief Justice was caught into a session on a Saturday morning and basically said I am being framed and what is the judiciary do they immediately asked one of the most respected most respected former justices of the Supreme Court Justice Ekip Patnaik to inquire into this and was Justice Gogoy prosecuted for the for the complaints made against him for his for his alleged conduct towards his staff member no never happened so a complaint was made it never resulted in FIR never resulted in prosecution and no one said okay if Justice Gogoy gets acquitted then we will see whether his complaint of being framed is good or not and but you know this was taken and very seriously by the judiciary but this should be taken selective prosecution the charge that people are being singled out and that we are seeing in this country people who are speaking out for the poor people who are speaking out for the defenseless they are being singled out for prosecution let me also point out that selective prosecution does not have does not rely on the fact that the prosecution charge is false or wrong for example there is a man this is an actual case in the United States a racist policeman is catching motorists for speeding and it turns out that every single motorist he catches is African American now there is evidence that they were speeding it's not that they were not speeding they violated the law but that entire prosecution is entire prosecution in its entirety is struck down because they say the state cannot act with racial prejudice so even if you committed a wrong a legal wrong you cannot be prosecuted on the basis of prohibited grounds such as racism or political enmity or political rivalry because then what will happen is that the state will wait for you to make a mistake target you wait for you to make a mistake and then produce the evidence and put you away and what is in danger then is really democracy and the rule of law because those who are violating the law are not being targeted and watched for violation of the law in an independent manner only those who the state doesn't like the executive doesn't like only they are being watched meanwhile the other guys are committing crimes because they are not being watched because they are on the right political side or the right ideological side they are not being watched so what will happen is that rule of law and safety and security of the country is going to go down if the state is only focusing misusing the law enforcement to achieve its illegal and prohibited aims which is what is going on all the time that has been spent in finding out tiny errors but may or may not have been done by political opponents if that time had been spent actually tracking down terrorists, real terrorists or real criminals you know and protecting people then you know the law not in this country would improve and that is the purpose that is why judiciary should protect selective prosecution sorry sorry I have to correct myself should protect us against selective prosecution or from selective prosecution for example there is no way to know and perhaps I believe that some government comes and does an audit that this spyware bought by the government of India to what extent was it used for political surveillance and to what extent was it used for tackling crime and terrorism yes yes because crimes are mounting see the crimes are mounting everywhere in the world and there is you know but as justice Stephen said the framework of rule of law which demands the fair and equal not criminal invigilation and prosecution with an evil eye as the US Supreme Court very evocatively said but with an even hand to protect all of us I think that is what the judiciary is a corrective it has an auditive function it should make sure that the state functions in accordance with the constitution and there should not be diversion of the energy the resources the manpower and the and the overall state apparatus towards you know malicious false political prosecutions intended only to keep particular individuals of particular parties in power exactly and meanwhile what is the price we are paying we cannot sleep peacefully at night because there is no one watching out to make sure that criminals are being the genuine criminals our criminal gangs and mafias including those who traffic women those who you know most of these those who commit incredibly depraved crimes against the Dalits and the minorities of this country those are the people that should be watched so that the citizens of this country will be safe so there is a paradox where the state is getting mightier and mightier in terms of arming itself with stronger laws a very wide network of surveillance all the technology and machinery at its disposal to keep an eye on individual movements on the other hand acts of terror they continue to search so thank you so much Dr Gopal you wanted to add something one thing I do want to say yes just very quickly just to put it on the list I think the big challenge here is how does the judiciary deal with errors being made by judges of law which are not corrected or correctable on the judicial side through appeal and review processes because all systems all systems in the world must have corrective mechanisms to guard themselves against judicial error and errors are human beings they don't make more errors than any other set of human beings but they also don't make less errors than any other set of human beings the question is we have to ask what are these mechanisms that are in place to ensure that the system guards against errors being made on the judicial side and those are we have the judges inquiry act that's like a huge sledge hammer and it's very rarely used because it's also guided by again political considerations not with an even hand and there is the internal procedures of the judiciary which are very opaque and therefore have very little among very little public confidence so I think this instance of Stan Swamy offers the judiciary especially the Bombay High Court an opportunity to offer the people at its own initiative as it decides appropriately a way to examine independently whether or not errors were made and if so how they should be corrected not as as a review of judicial action by the judiciary because that's a separate issue but simply as an institutional review of its own functioning and respecting fully judicial discretion and the independence of judicial decision making and not substituting for judicial review but some institutional reviews necessary and I think I hope that the father Stan Swamy's death will not go in vain and will result in some institutional innovation in protecting people against the judicial error in future. One hopes Dr. Gopal ironically just a day before yesterday Bombay High Court made a remark the same bench which was dealing with Stan Swamy's bail applications that they have immense respect for Stan Swamy's work the work that he did for the tribals and for the poor and the disadvantaged how ironical I wish I wish to be in a position where I can say for future Stan Swamis that also say like the judges have that I have enormous respect for the work of the judges on Stan Swamy or future Stan Swamis they should make sure that their work also commands from the heart equal respect from the citizens Thank you so much Professor Gopal for your very interesting and very innovative views on the issue of rule of law judicial independence and constitutional guarantees that was Professor Mohan Gopal speaking to the leaflet he crafted some very innovative arguments about selective prosecution being a threshold issue some also very innovative arguments on judicial independence and also narrative independence which is so critical these days when we are dealing with the spectrum of authoritarian government and overuse and overreach of police powers I hope that you enjoyed watching Dr. Mohan Gopal and listening to his views and this debate continues and there is more spotlight on the functioning of the judiciary and how judicial independence can be secured through institutional means through self correction means by the judiciary itself Thank you