Every institution that is designed to hold the executive accountable, is being destroyed
Justice AP Shah
Former Chief Justice of
Delhi High Court
Former Chief Justice of Delhi High Court, Justice AP Shah, gave the Justice Hosbet Suresh Memorial Lecture on 18th September 2020, in which he talked about how India is not living up to the principles of a liberal democratic republic.
….. continuing from the previous issue
The truth is that the era of the Supreme Court’s glorious jurisprudence has all but vanished. We seem to have only memories of its illustrious past to reminisce upon today. We were recently told in Puttaswamy case that the ghosts of ADM Jabalpur had been buried deep, but I fear that these ghosts may have returned to haunt us once again.
The most stark representation of the Court’s decline can be seen in its failure to perform as a counter majoritarian Court. I emphasise counter-majoritarianism because it is important to recognise the role of the Court in protecting the interests of minorities. A democracy derives its legitimacy from representing the will of the majority. But this legitimacy comes at a cost, which is invariably borne by minority groups, and especially those that are unpopular or victims of deep prejudice and who cannot influence the legislature in any way. This power to protect minorities from the tyranny of the majority is the basis of judicial review powers that allow Courts to strike down laws for violating the Constitution.
Now, though, it seems that the Court is turning away from decades of its own history, and is, instead, aligning with the majoritarian view unhesitatingly and without question. Two recent cases which demonstrate this clearly are Sabarimala and Ayodhya.
The original 2018 Supreme Court judgment in Sabarimala was an extremely progressive one: it permitted the entry of women into the Sabarimala Temple in Kerala. But when the Kerala state government tried to implement the Court’s judgment, the BJP-led Centre sided with Ayyappa devotees. The Court’s word should have been final, but the Central Government seemed to believe that was not the case.
Soon after, review petitions were filed, but these were kept pending for certain referred questions to be decided by a larger bench. There was no stay on the main judgment. But the Court said that the referral meant that the judgement was “not final”, and therefore, refused to issue directions on a petition for seeking safe entry into Sabarimala.
This has opened up a pandora’s box of nightmares that we might live to regret: it means the Central Government can, with impunity, ignore the Supreme Court; and that judgments can be conveniently “re-opened” through referrals in the guise of reviews. What implications does this have for the rule of law?
The issue of rule of law and finality also came up in the Ayodhya judgment. In its unanimous but unusually anonymous decision on an essentially political issue, the Court said that the Allahabad High Court’s decision to divide the property into three parts was not “feasible” in order to maintain peace and tranquility. However, did the Supreme Court’s judgment result in complete justice? Despite acknowledging the illegalities committed by the Hindus, in 1949 and 1992, the court effectively rewarded the wrongdoer. Surely, this is against the doctrine of equity, where one must approach the Court with clean hands.
Just as the Central government exhibited impunity in the Sabarimala judgment, in the Ayodhya case, too, the Hindu Mahasabha pressed for the withdrawal of criminal cases against the kar sevaks involved in the 1992 demolition and violence. It also demanded that the kar sevaks be given government pensions, and their names listed in the temple on the site of Masjid! – as though they were freedom fighters! The Supreme Court has said that the criminal cases must continue, but in the larger scheme of things, I am doubtful if any meaningful result will emerge.
The failure to remain committed to the Constitution, as demonstrated by the Court’s jurisprudence on Article 21, is becoming increasingly visible. In the face of the colossal public health crisis caused by COVID-19, the lives of migrant labourers have turned upside down: they have no work, no source of income, no access to basic necessities, and no means to reach home. Instead of taking on petitions questioning the situation, for the longest time, the Court refused to admit or adjourned these petitions.
In rejecting or adjourning these petitions, the Court made several questionable remarks: it said that governments already provided labourers with two square meals a day, so what more could they possibly need (surely, ‘not wages’); and that incidents like the horrific accident where migrant labourers sleeping on railway tracks were killed could not be avoided because ‘how can such things be stopped’.
Many of the so-called excuses of the Court have been tackled by previous judgments, notably the question of policy and non-judicial interference, for instance, the right to food; various environmental protection policies. In these cases, the Court formulated policies and asked States to implement them. In the migrant workers case, though, it made the unfortunate presumption that the government is the best judge of the situation. The suo motu recognition of the issue by the Court also came too late. Instead, the High Courts came across as islands of rationality, courage and compassion in these times, asking questions about migrant rights. Contrast this with the Supreme Court’s reaction to the bizarre claim of the Solicitor-General who argued that the exodus of workers was due to fake news: the Court accepted this, and media houses were advised to report more responsibly.
Our Supreme Court today, sadly, has time for a billion-dollar Indian cricket administration, or the grievances of a high-profile journalist, but studiously ignored the real plight of millions of migrants, who do not have either the money or the profile to compete for precious judicial time with other litigants.
Another kind of repression that is happening, perhaps unprecedented in modern India, is the stifling of the right to protest and to free speech. The executive is spearheading this, and the judiciary is either tacitly agreeing with the executive overtly, or maintaining silence around the issue. If we want to boast about being citizens of a democratic nation, this ought to be the first thing that worries us.
Take the protests against the clearly unconstitutional Citizenship Amendment Act (CAA). The constitutionality of the law was challenged in the Supreme Court, but the Court itself avoided taking up the matter for flimsy reasons. Meanwhile, the government has desperately tried to silence protestors. Indeed, the government is using every imaginable means, to silence any and all dissenting opinion, and to clamp down on any alternate views that might exist. More problematically, the judiciary is watching all this happen by the sidelines, like a mute spectator, without uttering a word.
Different strategies are employed in different States. In Uttar Pradesh, its Chief Minister said that he would take “revenge” against protestors, and that chanting “azadi”, or ‘freedom’, would amount to sedition! Police have been given license to run riot against peaceful protestors, by arresting them, destroying vehicles, and even entering homes. Targets tend to be young Muslims. A combination of charges under the National Security Act and the Goonda Act were used in UP.
But the burning issue in this context has surely been the Delhi riots. The government has been targeting those who express an honest view, and engage in honest protests, and even, on occasion, stage a play! Unarmed students have been attacked by the police. Anyone critical of the establishment, regardless of their intentions, such as Apoorvanand and Yogendra Yadav, are implicated at the slightest opportunity. The strategy in Delhi has been to charge individuals with criminal offences of rioting, unlawful assembly, criminal conspiracy, and that awful colonial legacy that is sedition, to name but a few, in conjunction with the (newly interpreted) Unlawful Activities Prevention Act (UAPA). Contrast this treatment of civilians with that of leading politicians of the ruling BJP who have publicly delivered inciteful speeches. Shockingly, no punitive action was taken against them. Instead, the one judge who showed some inclination to take action was conveniently transferred.
The arrests here have been to a template: if a person expresses a legitimate view against the CAA, he is promptly labelled an anti national, and the law enforcement machinery kicks in. It does not matter that the CAA is a blatantly unconstitutional law. The police says that the protesters sought to “execute a secessionist movement in the country by propagating an armed rebellion” in which “the anti-government feelings of the Muslims will be used at an appropriate time to destabilise the government.”
The former police officer, Julio Ribeiro, has pointed to the lack of a fair investigation in the Delhi riots, drawing similarities with the 1984 riots here. He rightly said that “riots recur in India because of the impunity accorded to one section by the political establishment of the day”. Police investigations in the riots have been based on mere “disclosures”, with no concrete evidence. Surely, this goes against all principles of fair investigation. By taking action against peaceful protesters, but deliberately failing to register cognizable offences against those making the hate speeches that triggered the riots in Delhi, the Delhi police has been accused of being partisan and politically motivated. With the police taking a majoritarian stance as well, effectively, the real culprits of the violence belonging to the majority community are allowed to get away.
Why are the political establishment, and the police so emboldened? Undoubtedly, it is because of the weak judiciary that we have in India today. Had the Supreme Court not remained a mute spectator, and had it intervened more proactively, all this would arguably not have happened. Instead, the Supreme Court conveniently declined to intervene, showing no urgency in wanting to deal with these problems. For weeks, the matters involving many of these issues (for example, the Delhi riots) kept getting adjourned. Even where matters were heard and decided, when they were appealed, there was judicial silence. When the Allahabad High Court directed that protestors’ photographs put on hoardings should be pulled down in 24 hours as the action was unsupported by law, in appeal by the UP government, the two-judge Supreme Court bench agreed with the High Court on the unlawfulness of the action, but it still mysteriously made a reference to a three-judge bench, effectively permitting the State to ignore the High Court order.
To make matters worse, the Supreme Court’s April 2019 decision in NIA vs. Zahoor Watali on the interpretation of the UAPA has affected all downstream decisions involving the statute. This decision has created a new doctrine, which is that effectively, an accused must remain in custody throughout the period of the trial, even if it is eventually proven that the evidence against the person was inadmissible, and the accused is finally acquitted. The illogic of this veers on the absurd: Why must an accused remain in jail only to be eventually acquitted? According to the decision delivered by Justice Khanwilkar and Justice Rastogi, in considering bail applications under the UAPA, courts must presume every allegation made in the First Information Report to be correct. Further, bail can now be obtained only if the accused produces material to contradict the prosecution. In other words, the burden rests on the accused to disprove the allegations, which is virtually impossible in most cases. The decision has essentially excluded the question of admissibility of evidence at the stage of bail. By doing so, it has effectively excluded the Evidence Act itself, which arguably makes the decision unconstitutional. Bail hearings under the UAPA are now nothing more than mere farce. With such high barriers of proof, it is now impossible for an accused to obtain bail, and is in fact a convenient tool to put a person behind bars indefinitely. It is nothing short of a nightmare come true for arrestees.
Source : www.thequint.com
…..to be continued