Supreme Court’s Selective Approach Will Not Prevent the 'Path of Destruction'

The Supreme Court order on Arnab Goswami does nothing if the same concern is not extended in the case of hundreds of citizens who have been jailed under various politically motivated cases.

The Supreme Court’s decision to grant interim bail to Republic TV’s Arnab Goswami has led to sharp reactions. Among people who identify themselves as liberals, there are three broad strands of thinking. First, there are those who feel that Goswami should not have been given bail in the first place. Second, those who have taken a ‘principled stand’, and standing unconditionally in favour of the decision. Third, there are those who are not opposed to the decision of giving bail per se, but are concerned about the Supreme Court’s selective approach. I tend to agree with the third.

The first group, who are critical of granting bail to Goswami, have rightly pointed out that the case for which he has been arrested has nothing to do with freedom of expression; it is an abetment to suicide case under Section 306 of the Indian Penal Code. While technically correct, this argument completely ignores the larger context of the arrest: the ongoing proxy-war between the Bharatiya Janata Party and the Shiv Sena, Nationalist Congress Party and Congress-led government in Maharashtra. By that logic, many politically motivated cases against several activists can be justified based on technicalities while ignoring ‘the big picture’.

It is normal to not feel any sympathy for Goswami, given that he has demonised so many activists without any evidence and continues to cheer their incarceration in the name of nationalism. The image of him pleading for bail is perhaps ‘satisfying’, for he deserves some ‘punishment’ for his hate speech and lies disguised as journalism. Yet, as a matter of principle, an acknowledgement of concern over potential misuse of state power is important. It is not that you need to stand in solidarity with Goswami as a person; the point is to stand up for the principle. This is the broadly the argument of the second group, the ‘principled stand’.

Also read: Prompt Hearing of Arnab’s Habeas Plea Is Welcome, Let This Now Be the Norm for All

This is not to say that the case against Goswami has no legal merit. Perhaps it does, but it is for legal experts to argue. Suffice it to say, abetment to suicide is highly controversial and heavily debated in legal circles. The limited point argument against the first group is that concerns over misuse of state power should not be immediately brushed off. If misuse of state power is legitimised, it is likely to hurt ‘both sides’, and it is the marginalised sections that usually suffer the most in the long-run.

While agreeing with the overall premise that misuse of state power is concerning, the third group — where I somewhat locate myself — is highly sceptical of praising the order, given the court’s selective approach. The order does nothing, or even makes things worse, if the same concern if not greater is not extended in the case of hundreds of citizens who have been jailed under various politically motivated cases: and they deserve it more than Goswami. The argument is that holding on to principles during a crisis — when the other side is dismantling the very institutions that are supposed to uphold these principles — is not the optimal strategy as it enables the destruction of the institutions.

From this perspective, the Uddhav Thackeray government is merely responding to the misuse of power by the BJP through Central agencies and a compliant media. Consider a sports game where we know that the opposite team was cheating with impunity; the only way to meaningfully compete then is to do the same to balance it out. For those familiar with game theory, this is somewhat like the prisoner’s dilemma. In plain English, it means that the best strategy for the Maharashtra government (and other opposition-governed states) is to ‘balance out’ the misuse of state power by the BJP government(s) by doing precisely the same against the BJP and their proxies like Goswami in the states governed by them.

Also read: A List of Activists, Scholars and Scribes Whose Personal Liberty Remains at Judiciary’s Mercy

In a game where only the BJP government(s) misuse state power, it can increase its power by compromising institutions. The incentive structure becomes such that the other parties have to do the same to balance it out. Therefore, with the increasing misuse of state power by one actor, we are prone to entering a vicious cycle where everyone does it when they can.

This is a useful way of thinking because it highlights potential stakes in the long run: it is the institutions and principles that stand to lose in the end. The Supreme Court must show the same sense of urgency in politically motivated cases by BJP governments. It is only then the incentive structure for misusing state power can be mitigated; its selective outrage is counterproductive if the aim is to avoid “travelling to the path of destruction”, as stated by Justice D.Y. Chandrachud.

Fahad Hasin studies political science at Ashoka University.