The Supreme Court’s decision to grant a provisional bond to Republic TV’s Arnab Goswami has sparked strong reactions. Among people who identify themselves as liberal, there are three broad lines of thought. First, there are those who feel that Goswami should not have received a bond in the first place. Secondly, those who have adopted a “principled position” and are unconditionally in favor of the decision. Third, there are those who do not oppose the decision to post bail. per seBut they are concerned about the selective focus of the Supreme Court. I tend to agree with the third.
The first group, which criticizes the granting of bail to Goswami, has rightly pointed out that the case for which he has been arrested has nothing to do with freedom of expression; it is an incitement to the suicide case under Section 306 of the Indian Penal Code. While technically correct, this argument completely ignores the broader context of the arrest: the ongoing proxy war between the Bharatiya Janata Party and the Shiv Sena, the Nationalist Congress Party and the congressional-led government in Maharashtra. By that logic, many politically motivated cases against multiple activists can be justified on technicalities without taking “the big picture” into account.
It is normal not to feel any sympathy for Goswami, given that he has demonized so many activists without any evidence and continues to cheer his imprisonment in the name of nationalism. The image of him asking for bail is perhaps “satisfactory”, because he deserves some “punishment” for his hate speech and his lies disguised as journalism. However, as a matter of principle, it is important to acknowledge concerns about the possible misuse of state power. It is not that you need to be in solidarity with Goswami as a person; the point is to defend the principle. This is, broadly speaking, the argument of the second group, the “principled position.”
This is not to say that the case against Goswami has no legal merit. Perhaps it is, but it is up to legal experts to argue. Suffice it to say that incitement to suicide is highly controversial and highly debated in legal circles. The argument of limited importance against the first group is that concerns about the misuse of state power should not be immediately dismissed. If the misuse of state power is legitimized, it is likely to harm “both sides”, and it is the marginalized who tend to suffer the most in the long run.
While agreeing with the general premise that the misuse of state power is concerning, the third group, where I am in some way, is very skeptical of praising the order, given the court’s selective focus. The order does nothing, or even makes things worse, if the same, if not greater concern is not extended in the case of hundreds of citizens who have been imprisoned for 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 party is dismantling the very institutions that these principles are supposed to uphold, is not the optimal strategy, as it allows for the destruction of institutions.
From this perspective, the Uddhav Thackeray government is simply responding to abuse of power by the BJP through compliant central agencies and media. Consider a sports game in which we know the opposing team was cheating with impunity; the only way to compete in a meaningful way is to do the same to balance it out. For those familiar with game theory, this is something of a prisoner’s dilemma. In layman’s terms, it means that the best strategy for the government of Maharashtra (and other opposition-ruled states) is to ‘balance’ the misuse of state power by BJP governments by doing the exact same thing against the BJP and their representatives. like Goswami in the states governed by them.
In a game where only the BJP government (s) abuse the power of the state, you can increase your power by compromising the institutions. The incentive structure becomes such that the other parties have to do the same to balance it. Therefore, with the increasing misuse of state power by one actor, we are prone to enter a vicious cycle in which everyone does it when they can.
This is a useful way of thinking because it highlights potential long-term risks: it is institutions and principles that ultimately stand to lose. The Supreme Court must show the same sense of urgency in the politically motivated cases of the BJP governments. Only then can the incentive structure for the misuse of state power be mitigated; their selective outrage is counterproductive if the goal is to avoid “traveling down the path of destruction,” as set by Judge DY Chandrachud.
Fahad Hasin studies political science at Ashoka University.
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