In the scheme of a constitutional democracy, Judiciary is envisioned as a watchdog entrusted with ensuring the observance of rule of law. It embodies the assurance that when the State recedes into arbitrariness or slips towards authoritarian excess, it shall be there to correct them; to proclaim that the aeon of ‘Lex, Rex’ shall remain steadfast. The judiciary is, thus, the final hope on which the superstructure of rule of law rests. It is normatively expected to be independent and impartial, consistent and predictable, disciplined in its institutional functioning and in its constitutional oversight. Any substantial departure from these behavioral expectations, and the hope starts to fade; the superstructure of rule of law begins to shake.
The erosion of constitutional hope
When Umar Khalid remarks, "now this is my life," upon the rejection of bail after more than five years of incarceration pending trial in the 2020 Delhi riots case, contrary to established bail jurisprudence, it reflects precisely that fading of constitutional hope. Among the vast amount of literature critiquing this order, there is one simple question that stares us in the face. Do speeches opposing certain legislation of the government and exhorting chakka jam as a form of resistance really constitute a 'terrorist act'? Would such a conclusion not overturn entire criminal jurisprudence on its head? Let this be briefly elucidated.
If such reasoning were to be taken to its logical conclusion, would it not necessitate reconfiguring the contours of criminal law so that any conduct more serious than a chakka jam, or than an even broader swathe of 'any other means,' could fall within the ambit of terrorism? Such an interpretive trajectory risks expanding the definition of terrorism far beyond its doctrinal purpose, thereby approximating a legal regime akin to a police state rather than principled constitutional governance.
