Fighting for Freedoms: Supreme Court In 21st Century (Part 2)

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

Kashmir

The Supreme Court’s orders on Kashmir represents a missed opportunity for the Court to come out strongly in favor 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 is related to the communication shutdown and Section 144 orders (prohibiting public gatherings) that were imposed on 05.08.2019. 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. For the purpose of this speech, I want to primarily focus on the internet shutdown case (Anuradha Bhasin), which was finally decided in January. The Court’s judgment is laudable in many respects – it directed the government to publish all orders, present, and future, authorizing the suspension of the internet/landline services and prohibiting public gatherings. It rejected the government’s argument that national security considerations precluded judicial review. It also gave constitutional protection to the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business, or occupation over the medium of the internet, though it did declare access to internet a fundamental right. Most importantly, the Court made it clear that an indefinite suspension of internet services is patently unconstitutional.

Unfortunately, despite these observations, 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, and the situation was changing on the ground daily. However, this reasoning seems tenuous, when we consider that a few samples shut down orders were placed before it (with detailed arguments being made about their unconstitutionality), and the Court could have easily directed the government to file the remaining orders. While the reliance on Lon Fuller’s famous statement that “there can be no greater legal monstrosity than a secret statute” is praiseworthy, it did not result in any practical benefit, given that the government was effectively allowed to take advantage of its own wrong of not publishing all the orders or submitting it before the Supreme Court. After ruling that the suspension of communication services must adhere to the principles of necessity and proportionality, the Court failed to apply these principles to actually decide the legality of the communication shutdown in Kashmir. Instead, it directed the fresh publication of all orders, with the Review Committee reviewing all these orders. The reliance on Lord Diplock’s aphorism ‘you must not use a steam-hammer to crack a nut if a nutcracker would do,’ was, at least for the people of Kashmir, meaningless.

A judicial review involves more than a mere declaration of the law. It requires the application of the 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 05 and December 05, 2019, as per the Kashmir Chamber of Commerce and Industry. The loss of jobs in the handicrafts 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% of tourists visiting the state. People, ordinary citizens, have been prevented from performing the simplest of tasks that we take for granted, whether it was filing GST tax returns, upgrading driving licenses, or applying for college admissions, and had to rely on the “Internet Express”, as reported by the Quint – the train from Srinagar to a town called Banihal, where broadband facilities were functioning – to attempt to finish these tasks. This is apart from the fear that gripped the Valley, and the emotional and mental stress caused by not being able to get in touch with your loved ones.

To these people, the Supreme Court’s judgment in Anuradha Bhasin has offered scant relief. We now have a situation where the government has “whitelisted” various websites and permitted the resumption of 2G services, although empirical analysis has shown that of the 301 whitelisted websites and services, only 126 were usable to some degree. Social media websites and peer to peer communication apps are still prohibited. Deep questions remain about whether whitelisting is proportionate, and the least restrictive alternative available with the government, and the legality of these orders will probably have to be addressed by the High Court of Jammu & Kashmir in the foreseeable future.

Meanwhile, Kashmir continues to face the longest intentional internet shut down ever recorded in a democratic country. As Aniket Aga and Chitrangada Choudhary note, “we seem to not care that in ‘integrating’ a people via an armed siege, in silencing their voices and dismissing their pain, we are also abrogating our own humanity.”

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, highlighting how the internet shut down was resulting in delays in accessing medical reports, delays in surgical and other medical procedures, and difficulties in accessing lifesaving drugs and baby food items that were mostly available online. 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. The Supreme Court permitted Sitaram Yechury to visit his colleague, Mr. Tarigami, only on the condition that he file an affidavit on his return and that he does not engage in any political activity during the course of his visit. 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 is not an occasion for the Court to impose conditions and place restrictions on the free movement to Kashmir. 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.

Even the PIL against the alleged reported illegal detention of juveniles and police excesses in dealing with juveniles in the context of the aftermath of the Article 370 decision in Jammu & Kashmir was disposed of on the basis of the report of the Juvenile Justice Committee of the High Court of Jammu & Kashmir, despite media reports to the contrary. The Court directed that if there was any case of illegal detention, the Petitioners were at liberty to approach the appropriate legal forum (namely the High Court) for redressal of their grievances.

These cases represent instances where, despite the urgency of the matter and the increase in the sanctioned strength of the Supreme Court, it has failed to decide these matters expeditiously. Instead, it has passed the buck to the High Court, which has reportedly received over 250 habeas corpus appeals since August 5, even though it is functioning with half its sanctioned strength of 17 judges. As the Senior Advocates, Raju Ramachandran and Chander Uday Singh have pertinently asked, “As the Court turns 70 in a few months, is the sentinel sufficiently alert, or is it in danger of losing the plot?”

Drifting towards an Executive Order

Moving on, several orders of the Supreme Court, including some orders in the Kashmir matter, suggest that the role of the Supreme Court as a counter-majoritarian institution, that is, as one that seeks to keep majoritarian impulses in check, is diminishing. On the other hand, as suggested by constitutional scholar Gautam Bhatia, the Court seems to be slowly taking on attributes of the executive itself. It seems to be drifting from a rights’ court to an executive court, as Bhatia points out, behaving in a way that is indistinguishable from the government, often issuing important policy decisions through its judgments, prioritizing cases in specific – and sometimes worrisome – ways, and undertaking actions that would ordinarily be considered the domain of the government. 

National Register of Citizens (NRC)

The most obvious example of this was the preparation of the National Register of Citizens, or the NRC. The NRC was intended to tackle concerns of landlessness, migration, and cultural issues in Assam. The Supreme Court had already, years ago, described the illegal immigration happening in Assam by Bangladeshi Muslims as an “external aggression” and an “invasion” of India. 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, although many would argue that the Court “oversaw” it less, and “controlled” it more. As a result of this, 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 a travesty of the worst order, perhaps, is the Court’s newfound attraction for sealed covers. Secrecy can – in limited circumstances – be justified by the executive, but 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. This has happened far too often to be brushed aside as a mere idiosyncrasy of one particular judge or a bench. It has happened in the NRC case, the Rafale case, the CBI chief’s case, and the case of the electoral bonds, to name but a few. By shoving documents and facts that otherwise ought to be made public into sealed envelopes, the Court is signaling that it prefers the work ethic of the executive, believing truly that such secrecy is essential to deliver justice. 

Prioritization of Cases

Another instance is the court’s worrisome practice when it comes to the prioritization of cases. The Court found it had no time to deal with the many civil rights-related cases that were lying before it pertaining to the situation in Kashmir. Mr. Gautam Bhatia tells us about the case pertaining to electoral bonds. Electoral bonds allow private individuals and corporate entities to make donations to political parties. Reports suggest that over 6000 crore rupees have been collected by parties under this scheme, the majority by the ruling establishment. The Supreme Court refused to stay the issuance of such bonds and instead 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. Inaction also sends out powerful signals, as we can see in this case. This inaction also spoke louder than words when the Court found it had no time to deal with the many civil rights-related cases that were lying before it. 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 behavior 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. 

Conclusion

As I was putting this piece together, I realized that even if I was critical of certain decisions of the Supreme Court, the fact remains that there is a high degree of “constitutional faith” in India today. Prof Baxi uses this phrase “constitutional faith” to describe the belief in society that the judicial process is key to anchoring India back onto the path of democracy, or the “redemocratization of democratic polity”, as he puts it. I agree with him. As a people, I think we still believe that one of the few things to be proud of in the Indian democratic setup is the free and fair judicial process that we are promised through the Constitution, which keeps the executive and the legislature in check, be they at the center or the state. The institution that is the judiciary is what we always turn to whenever the state abuses its power, or our fundamental freedoms are threatened. We truly believe that the courts can be our savior. 

Just playing savior, though, is rarely enough. The value of a judiciary is measured by its fidelity to the constitutional scheme that birthed it. When George Grote used the term “constitutional morality” in his study of Athenian democracy titled, A History of Greece, he was referring to 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. This resonated with Ambedkar too, when he recognized the role constitutional morality had played in the working of the Athenian democracy. But he also recognized that constitutional morality had to be cultivated, and it did not merely come into existence because the Constitution was written in a certain way 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 recognize the missteps it has taken and the correct course sooner than later.