Supreme Court and the fight for freedom

Delivering the LC Jain Memorial Lecture earlier this month, former Chief Justice of Delhi High Court A P Shah raised concerns over the functioning of the Supreme Court. Published here are extracts from this thoughtful speech.

Supreme Court and the fight for freedom

Supreme Court of India. (Photo: iStock)

The fact remains that there is a high degree of “constitutional faith” in India today. As a people, I think, we still believe that one of the few things to be proud of in the Indian democratic set up is the free and fair judicial process that we are promised through the Constitution, which keeps the executive and the legislature in check. Just playing saviour, though, is rarely enough.

The commitment to the processes and structures of the Constitution, as well as a commitment to freedom, embodied in things such as free speech, accountability, and transparency had to be cultivated and that constitutional order was always vulnerable and at risk.

Our Supreme Court has used the phrase constitutional morality several times in its judgments, particularly in recent years.


But instead of pointing outwards, I think the Court should be self-reflective, and should ask whether the institution itself is loyal to the spirit of constitutionalism, to this idea of constitutional morality.

Equally, I believe it is for the Supreme Court, as the custodian of the Constitution and the ultimate protector of our fundamental rights, to decide whether or not it deserves the constitutional faith that the people of India repose in it, and whether or not it lives up to those expectations.

The right answers will lead to the Supreme Court retaining its status as one of the world’s powerful democratic institutions.

As an eternal optimist, I believe the Supreme Court of India will recognise the missteps it has taken, and correct course sooner than later.

In their recent book, appropriately titled, “How Democratises Die”, Steven Levitsky and Daniel Ziblatt, write of how “most democratic breakdowns have been caused not by generals and soldiers but by elected governments. This subversion is carried out by the constitutional sanction of the ballot box.

Critical voices still rise up but those who dare to question the powers that be end up at the receiving end of all kinds of trouble ~ they are charged with making seditious remarks, or evading taxes, or some such thing. In this way, they use “the very institutions of democracy … to kill it”.

We can see such patterns in today’s India too. We see how agencies like the CBI or the police are used to intimidate political opponents, and harass political activists.

The country appears to be completely polarised because of the communal agenda followed by the ruling regime. Anyone who opposes or disagrees with government policies is branded as anti-national.

This is also the first time that there are serious issues with federalism in the country, marked especially by Centrestate disagreements on the Citizenship Amendment Act, the NRC and the NPR. There are instances where freedoms that we have taken for granted are on unsteady ground, and where we are being made to doubt whether the Supreme Court is actually able to protect our rights at all or not. Ayodhya: The Court’s judgment was unanimous, but anonymous! The name of the judge who authored the unanimous opinion was absent.

Even more peculiar was the 116 page anonymous “addendum” to the judgment, that sought to reinforce and reiterate the “faith, belief and trust of the Hindus” that the “disputed structure is the holy birthplace of Lord Ram”.

Despite acknowledging the illegality committed by the Hindus, first in 1949, by clandestinely keeping Ram Lalla idols in the mosque, and second, by wantonly demolishing the mosque in 1992, the court effectively rewarded the wrongdoer. This goes against the doctrine of equity, which requires you to approach the court with clean hands.

One wonders if the mosque had not been demolished, would it still have been given to the Hindus? Relying on the tenor of the court’s decision ~ which recognises the illegality of the demolition of the Babari Masjid, but does not act on it ~ the Hindu Mahasabha has begun pressing for the withdrawal of criminal cases against the kar sevaks involved in the demolition in 1992, and involved in the ensuing violence. Kashmir: The Supreme Court’s orders on Kashmir represents a missed opportunity for the Court to come our strongly in favour of fundamental rights, and fulfill its role as the sentinel on the qui vive.

Three sets of petitions relating to Kashmir were filed before the Court.

The first related to the communication shutdown and Section 144 orders (prohibiting public gatherings) that were imposed on 5 August 2019. The second set related to the habeas corpus petitions that were filed against the illegal arrests and detentions of individuals, including minors, under the draconian Public Safety Act.

The third set relates to the constitutional challenge to the government’s decision to amend Article 370 of the Constitution and breaking up the State of Jammu & Kashmir into Union Territories. In all three cases, the Court has failed to give a satisfactory resolution, even after six months.

On the internet shutdown case (Anuradha Bhasin), the court directed the government to publish all orders, present, and prohibiting public gatherings, though it did not go as far as to declare the right to access the internet a fundamental right. Unfortunately the Supreme Court failed to actually decide the matter.

The purported reason seems to be that it did not have all the orders in front of it. However, this reasoning seems tenuous, when we consider that a few sample shut down orders were placed before it with detailed arguments being made about their unconstitutionality. Instead, the Court directed the fresh publication of all orders, with the Review Committee.

Judicial review requires the application of law to the facts at hand. And the facts, quite simply, are that for more than 150 days, and even today, the people of Kashmir are without a proper functioning internet.

The impact of the communication shutdown has been severe. It has affected medical supplies, attendance in school, tourism, and resulted in a loss of business, of approximately Rs 15,000 crore between August 5 and December 5, 2019, as per the Kashmir Chamber of Commerce and Industry.

The loss of jobs in the handcrafts industry is said to be 50,000 and in the hospitality industry, is around 10,000. As per the data of the J&K Tourism Department, there is a drop of 86 per cent of tourists visiting the state. To these people, the Supreme Court’s judgment has offered scant relief.

Unfortunately, the lack of an effective remedy, and the trend of judicial evasion, is also visible in the Court’s handling of other cases dealing with Kashmir.

Dr Sameer Kaul, had filed a PIL before the Supreme Court seeking restoration of internet facilities in hospitals and other medical establishments in Jammu and Kashmir. He was told by the Supreme Court to approach the High Court to avail the appropriate legal remedy.

Similarly, another petition had been moved on behalf of the detained CPI-M leader, Md Yusuf Tarigami challenging his illegal detention.

Subsequently, while allowing Tarigami to visit Delhi to avail of medical treatment, the Supreme Court held that the challenge to his allegedly illegal detention was not urgent and would come up in due course.

The directions by the Court are surprising considering that a habeas corpus petition is meant to decide the legality of detention and are not an occasion for the Court to impose conditions and place restrictions. We must remember that there was no prohibition in place against visiting Kashmir, and the Court’s order had the effect of putting in place such restrictions. In doing so, the Court seemed even more executive minded than the Executive itself.

Moving on, several orders of the Supreme Court suggest that the role of the Supreme Court as one that seeks to keep majoritarian impulses in check, is diminishing. The Court seems to be slowly taki ng on attributes of the executive itself, behaving in a way that is indistinguishable from the government. National Register Of Citizens (NRC): The most obvious example of this was the preparation of the NRC which was intended to tackle concerns of landlessness, migration and cultural issues in Assam. The Supreme Court decided to ask the persons claiming citizenship of India to prove their status, shifting the burden of proof away from requiring the state to show that that person was a foreigner.

As it turns out, this migration theory has been proven to be completely incorrect. Out of the 1.9 million identified as foreigners, a majority of 1.2 are Hindus! Inarguably, this was an administrative exercise, which the executive and the bureaucracy ought to have been responsible for. Instead, we had a process that was “overseen” by the Supreme Court, and primarily under Chief Justice Gogoi.

Many would argue that the Court “oversaw” it less, and “controlled” it more. We were faced with a situation where any concerns with the NRC became impossible to challenge judicially, for the judiciary itself was conducting the process! The burden that has been caused to millions of people as a result of the NRC process is immense, and I can vouch for this personally based on my experience as part of the Peoples’ Tribunal that studied some of the cases of those involved.

These are mostly poor and illiterate people who are being made to prove that they are Indian citizens, based on documents such as of birth, schooling and land-ownership. These documents are not easy to find or put together. Even if they are put together, they are rejected for issues with the English-language spelling of Bengali names, or in ages and dates of birth. Sealed Covers: And what may be travesty of the worst order, perhaps, is the Court’s new found attraction for sealed covers.

The distinguishing feature of a judicial institution is transparency, for only then can the institution assure the people that it is giving everyone a fair and equal chance to be heard. It has happened in the NRC case, the Rafale case, the CBI chief’s case, and the electoral bonds case, to name but a few. By shoving documents and facts that otherwise ought to be made public, into sealed envelopes, the Court is signalling that it prefers the work ethic of the executive, believing truly that such secrecy is essential to deliver justice.

Prioritisation of Cases: Another instance is the court’s worrisome practice when it comes to the prioritization of cases. Reports suggest that over 6000 crore rupees have been collected by parties under the Electoral Bond scheme, the majority by the ruling establishment.

The Supreme Court asked for details of the contributors to be submitted in a sealed cover, which it would assess in due course. But that assessment never came, and many elections – central and state – have happened since then. The Court found it had no time to deal with the many civil rightsrelated cases that were lying before it pertaining to the situation in Kashmir. In the case of the CAA, too, the Chief Justice of India first says petitions will be heard only after people stop violence, as though good behaviour was a condition precedent for seeking protection of rights.

Scores of petitions were filed in the month of December 2019. The whole country was polarized, and there was even violence perpetrated against peaceful protesters by state authorities themselves. In this scenario, the Supreme Court proceeds to push the matter by four weeks, instead of commencing hearings immediately. This is deeply disappointing, to say the least.