Why India Needs A Truth Commission

A constitutional court attains significance on account of its counter-majoritarian role in a democracy.

- 

Judicial review is a process against legislative mischiefs and executive onslaught. When personal liberty is in peril, the trial court also exercises a constitutional function. Article 21 of the Constitution protects liberty of every person, which should not be deprived of "except according to procedure established by law". Article 22 grants "protection against arrest and detention in certain cases". The constitutional text, which on the face of it is impressive, requires a conscious effort from the judiciary to materialise.

Unfortunately, this is an area where Indian courts have often failed. During the last decade, the country had to pay a heavy cost for this failure, in terms of democracy and freedom.

Yet, a series of consolatory orders issued recently by the Supreme Court are significant. By way of an extraordinary order, the court granted interim bail to the Delhi Chief Minister Arvind Kejriwal. In another case, it invalidated the arrest of journalist Prabir Purkayastha and directed his release. In yet another development, the court ordered the release of Gautam Navlakha, a great intellectual of our times, an accused in the Bhima Koregaon case.

Again, a bench headed by Justice Abhay Oka made an important declaration that the Enforcement Directorate cannot arrest an accused once the special court has taken cognisance of the complaint of money laundering.