Fighting for Freedoms: Supreme Court In 21st Century (Part 1)

A lecture by ICJ Commissioner Justice Ajit Prakash Shah at LC Jain Memorial

Lakshmi Chand Jain would have been a young man when Mahatma Gandhi passed away in 1948, but he embodied the spirit of Gandhian values in the best possible way. Indeed, he has been described as “an impassioned crusader of what Gandhi called the second freedom struggle for a just and equitable India”.

Mr. Jain’s autobiography, titled Civil Disobedience is a fascinating book, especially, and very revelatory. In that, he makes extensive observations on the Emergency years. Recall that he was among the few brave ones who mobilized people for an anti-Emergency movement. What he says in the book is relevant even now, and remembering him in today’s times could not be more apposite.

What I find especially interesting is his view that, after independence, “State” and “Society” had separate spheres. He felt that Nehru and others associated with him were building the state and running the government, while Mr. Jain himself and those around him were building and running “Society”. This is based on the notion that freedom was now secure as there was a Constitution which laid down the ground rules. The Emergency came as a shock to people like him, who spent decades restoring peace and structure to a country that was recovering from a century and more of fighting for independence. Mr. Jain said that the Emergency was a wake-up call, and freedoms could not be taken for granted.

This emotional upheaval that Mr. Jain and his peers probably went through during the 1970s is not unique to India. In their recent book, appropriately titled, How Democracies Die, Steven Levitsky and Daniel Ziblatt, write of how “most democratic breakdowns have been caused not by generals and soldiers but by elected governments”. They document the many instances of how “elected leaders have subverted democratic institutions” across the world.

This subversion is carried out by the constitutional sanction of the ballot box, with approval from the legislature and the judiciary. Throughout, there is always the assurance that the democratic wheels are still turning. Levitsky and Ziblatt call the leaders who thrive in such situations “elected autocrats”. Such elected autocrats weaponize institutions, to use them as political ammunition. They compel the media and the private sector into silence, and they redraft rules to suit their interests over those of their political opponents. Critical voices still rise in the backdrop of the chorus of the hoi polloi, 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”.

As for all of us, if we look closely enough, we can see such patterns in today’s India too. Ever so often, we hear of the collapse of yet another institution that is central to the country’s functioning – whether it is the Reserve Bank or the Election Commission. And then we see how agencies like the Central Bureau of Investigation or the police are used to intimidate political opponents and harass political activists. The country appears to be completely polarized because of the communal agenda followed by the ruling regime. Hate speech has become normal, with national-level politicians leading the charge. The government has taken upon itself the mantle of deciding who is entitled to protections and who is not, by othering entire segments of the people, with party leaders labeling Muslims variously as beef-eaters, infiltrators, traitors, and potential terrorists.

To any observer, this conversion of an entire community into an imagined enemy is clearly an expression of paranoia on the part of the ruling establishment. There is also a divisive, jingoistic idea of nationalism that is being encouraged, centered on religion and cultural identity, which is deeply discomforting. Combined with this, we are in a situation where 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 Centre-State disagreements on the Citizenship Amendment Act, the NRC, and the NPR. Even police investigations, Bhima Koregaon being one such, are representative of this federalism challenge. And all of this is happening in the backdrop of an economic slowdown which seems to have blindsided the government.

In the midst of all of this, there is a positive, heartening moment like the protests we see today, against the Citizenship Amendment Act, and everything that it stands for. When students – from all over the country, including from institutions like JNU, Jamia Milia, AMU, St Stephens, who collectively embody the future of a nation – come together in a peaceful protest against an unjust and unconstitutional law, it is an act that citizens of any democracy should be proud of. Such an act is not merely a protest. It shows that the young people know, understand, and believe in the constitutional values that our founding fathers sought to embody and that they will work to protect these values. 

The focus of my piece will be on how the Supreme Court of India has evolved in the recent years, roughly in the last decade or so, in the context of the democratic upheavals that India has been facing, and the kinds of protections and freedoms we have won and lost as a result of this judicial evolution. I will begin with a brief overview of what the vision for the Supreme Court of India was, to set the stage to examine whether it has fulfilled that vision, and to what degree.

I will then discuss a few cases that reveal how the Court has functioned, and what it has meant for the various kinds of freedoms we have asked for, such as the freedom of identity, whether religious or sexual; the freedom to dissent; the freedom of movement and peaceful assembly; the freedom to ask questions and seek transparency in government; and the freedom of the press. I will conclude with what I feel is the state of affairs with the Supreme Court and where challenges and opportunities lie in order for the institution to remain an integral part of the healthy democracy that India seeks to remain.

The role of the Supreme Court

We are marking 70 years of the coming into force of the Constitution, just as we are marking 70 years of the establishment of the Supreme Court too. In 1952, in the State of Madras v VG Row, the Supreme Court assumed for itself the role of the sentinel on the qui vive (meaning “on the alert” or “vigilant”), in defense of citizens’ fundamental rights. Later, Justice Bhagwati observed in State of Rajasthan v. Union of India that the Supreme Court is the ultimate interpreter of the Constitution, and it is for the Supreme Court “to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law.” 

Unfortunately, in the initial period, the Supreme Court adopted a conservative approach, by reading only the literal text of the Constitution, treating each fundamental right as a separate chapter. In doing so, as it turned out, the Court essentially ended up working as the protector of the landed gentry, reaching a climactic conclusion with the infamous ADM Jabalpur case, in the aftermath of the Emergency. Recall that a majority of the constitutional bench, in that case, barring Justice HR Khanna, agreed with the government that there was no right to life and personal liberty during an Emergency. After the Emergency was lifted, though, there was a sort of catharsis in the judiciary, between 1977 and 1979, when, as Prof. Upendra Baxi points out, the Supreme Court judges “apologized, in word and deed, to the people of India for judicial abdication during the… Emergency period”. After that, the Court switched tack and began focusing on what we now call “public interest litigation,” where it sought to protect the rights of those who could not otherwise approach the court themselves, or as one judge famously put it, to become “the last resort of the oppressed and the bewildered” [1].

This newfound fascination for judicial activism acquired energy of its own, which some scholars have described as being “euphoric” even. In the process, the Supreme Court underlined the meta-morphosis in its attitude towards article 21. The 1980s and 1990s saw a dominance of PILs and social justice matters in court.

In recent times also, the Supreme Court, in some judgments, has interpreted the Constitution with deeper insights and analyses, going far beyond the literal word of the law, and examining legislative purpose more closely. As scholar Gautam Bhatia puts it, these judgments represent a radical transformation, with the Court breathing new life into the fundamental rights through these decisions. I can name a few Constitutional Bench judgments delivered in this spirit, some of which I discuss here. 

At least two of these are judgments in matters that I am very much personally associated with. These are the judgments in Navtej Singh Johar v. Union of India, and CPIO, Supreme Court of India vs. Subhash Chandra Aggarwal. In the former matter, I had delivered the original judgment in Naz Foundation v. Govt of NCT of Delhi, where we had read down Section 377 of the Indian Penal Code, which had criminalized homosexuality. This was later reversed by the single stroke of a pen, leaving millions of people re-criminalized overnight. I honestly never thought that such a colonial practice, as contained in Section 377 would be sustained in modern India. Then, the Supreme Court decision in Navtej Johar happened, and finally, we can boast of an India where sodomy law has gone forever.

The second case, involving the applicability of the Right to Information Act on members of the judiciary, was something I had decided during my time in the Delhi High Court as well. The outcome of the case was problematic and satisfying at the same time. It was problematic because the majority judgment placed too many caveats and riders on the applicability of the RTI on the judiciary. That said, Justice Chandrachud’s dissenting opinion counterbalanced this majority view when he said that judges must be accountable to the people they serve, and more importantly, he explicitly wrote that “the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm.” 

Then we have the judgment that decriminalized adultery in India, which was also a dramatic turnaround from the position taken by the court previously. It was particularly unique because the earlier judgment was written by the senior Justice Chandrachud, and his son was on the bench that repealed that decision.

Another notable case is the privacy judgment in Justice K. S. Puttaswamy (Retd.) and Anr. vs. Union of India And Ors, where the judges have practically offered a treatise on privacy law, not seen since the judgment in R Rajgopal v. State of Tamil Nadu. This judgment was also unique, as one of the judges, Justice Chandrachud wrote that that the ADM Jabalpur case was an aberration in the constitutional jurisprudence of the country and that the majority opinion deserved to be buried “ten fathoms deep” with “no chance of resurrection.”  

The Supreme Court and our Freedoms

But then 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. It is disturbing and unfortunate that we should still be asking questions of this kind, but some recent judgments and orders prompt such reflection. These judgments beg us to ask if the sentinel remains on the qui vive after all. I will be discussing some of these judgments in this section. 

Sabarimala

One area where the Court’s decision making is coming under intense scrutiny is in the realm of personal liberty and religious freedoms. In 2018, the Supreme Court, in a progressive judgment, permitted the entry of women into the Sabarimala Temple in Kerala. The judgment, however, became controversial and faced some problems with implementation. Notably, a senior Union Minister criticized the Kerala Government for implementing the Court’s judgment, saying that in “Sabarimala, the nation has seen a fight between dharma, belief & bhakti on the one side & an oppressive Kerala govt on the other” and that the BJP stood firmly with the Ayyappa devotees. There should have been no controversy or doubt regarding the implementation of the Supreme Court’s judgment, especially since no stay had been granted, but the Central Government’s actions seemed to raise the specter that the judgment was not final.

Immediately after the judgment was passed, review petitions were filed. However, in November 2019, while hearing these review petitions, the Supreme Court passed a curious order in Kantaru Rajeevaru v Indian Young Lawyers Association, directing that the Sabarimala review petition as well as other writ petitions – concerning the entry of Muslim women in a Durgah/Mosque, entry of Parsi women married to a non-Parsi into the holy Agyari, female genital mutilation in the Dawoodi Bohra community – remain pending until the determination of the questions (formulated by the majority) by a larger bench, to be constituted by the Chief Justice. Notably, the review petition itself was not referred to a larger bench; and was only kept pending till the adjudication of the referred questions by the larger bench.

The majority’s order in the Sabarimala review petitions seems to be beyond the scope of Article 137 of the Constitution. Review powers are used rarely, only when there is an error apparent on the face of the record, or a glaring omission or mistake. A review is not an appeal or a fresh consideration of a case. However, in Kantaru Rajeevaru, the Court directed a fresh hearing of the Sabarimala matter, by a larger Bench, without any reasons for the review, and without pointing out any grave errors in the judgment under review. The order did not even endorse Justice Malhotra’s dissent in the original Sabarimala judgment. Instead, it tagged the Sabarimala matter with other pending cases that raised common issues regarding the interpretation of Article 25 and 26, even though those cases were not before the Court. Strong dissents were recorded by Justices Nariman and Chandrachud to this reference. 

While passing the referral order, the majority did not pass any order staying the operation of the main judgment. Earlier, in November 2018 itself, the five-judge bench had also refused to grant a stay. In these circumstances, it is peculiar, and unfortunate, that in December 2019, the Supreme Court declined to pass any order on the petition by two women activists seeking a direction to ensure safe entry in the Sabarimala temple on the ground that the issue was “very emotive”; it did not want the situation to become “explosive”; and that despite there being no stay, the fact of the referral meant that the judgment was “not final.”

The Supreme Court has often been characterized as supreme (in the sense of final), but not infallible. The Court’s order in Kantaru Rajeevaru has now upended the assumptions about its judgments being final. 

The aftermath of the Sabarimala judgment has given rise to various causes of concern, including the impunity of the Central Government in ignoring the judgment of the Supreme Court, the re-opening of the judgment through a referral in the guise of a review, and the implications for the rule of law.

Ayodhya

The issue of the rule of law and finality arose once again in the Ayodhya judgment, where the Court tried to give legal quietus to an essentially political issue.

The Court’s judgment was unanimous but anonymous. Contrary to judicial practice, 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”. The need for this addendum is highly questionable given that the bench had already unanimously decided the case on constitutional principles, and the addendum was not serving the role of a concurring opinion. Instead, the addendum seems to reinforce the supremacy of Hindu theological considerations.

A key issue that arose in this judgment was the issue of equity. The Supreme Court was of the view that the Allahabad High Court’s decision to divide the property into three parts was not “feasible” in view of the need to maintain peace and tranquility. However, whether the Supreme Court’s judgment resulted in complete justice is questionable since it still seems like 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. Given the Court’s findings, one wonders if the mosque had not been demolished, would it still have been given to the Hindus?

Part of the problem lies in the fact that although the judgment is an unimaginable scholarship on Hindu law, the dispute was not ideally placed to be settled by courts; and should have been resolved politically. As Suhas Palshikar notes, “courts, when they broker peace, do not necessarily bring closure to disputes; they only give momentary space for disputes to reconfigure.” Maybe a South African style Truth and Reconciliation Commission would have been a greater idea.

The issue of impunity, discussed in the context of (non)-implementation of the Sabarimala judgment and the failure of the Court to provide/ensure the safe passage of women devotees, comes up once again in Ayodhya. Relying on the tenor of the Court’s decision – which recognizes the illegality of the demolition of the Babri 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. Not only that, but it is also demanding that the kar sevaks be given government pensions, and their names are listed in the temple that will eventually be built on the site of Babri Masjid! The Visva Hindu Parishad, not to be left behind, states that it will make similar claims in respect of 3000 other mosques. Whether the Supreme Court’s assurances that the Places of Worship Act imposes a non-derogable obligation towards enforcing India’s constitutional commitment to secularism will amount to anything in practice or will the judgment only serve as a shot in the arm for the Hindus, will depend in part, on the Court’s ability to ensure the proper enforcement of its judgment. More fundamentally, though, does this judgment actually strengthen or even sustain secularism at all?

Beyond this, is the question of the actual implementation of the judgment. I am inclined to agree with Madhav Godbole, former Home Secretary, in this regard. He asks whether giving five acres of alternate land to Muslims for constructing a mosque is the most appropriate or adequate compensation. He also asks, what happens to the psychological hurt caused to the Muslims by destroying this place of worship? In an ideal situation, he says, the Court should have asked the state and central governments to rebuild the mosque. Indeed, PV Narasimha Rao, the prime minister when the mosque was demolished, had announced this in Parliament, and later wanted it fulfilled. The Gujarat High Court, too, has ordered compensation for wherever religious buildings – mainly mosques – were damaged during the riots. Instead of providing a simpler solution, the court has complicated the implementation and enforcement process.   

[1] State of Rajasthan vs. Union of India (1979) 3 SCC 634 at 670