The judiciary needs to dispel the perception that its standing as the guardian of constitutional rights is faltering

The biggest blow to the people of India was delivered by the Supreme Court of India on April 28, 1976. five-member Constitution Bench (the Chief Justice of India, A.N. Ray, and Justices H.R. Khanna, M. Hameedullah Beg, Y.V. Chandrachud and P.N. Bhagwati) delivered its judgment in the Additional District Magistrate, ... vs. S.S. Shukla Etc. Etc. The scars it inflicted on the Constitution, constitutional morality and constitutionalism are deep.

Emergency formulation

This was the judgment that allowed the suspension of the writ of habeas corpus during Emergency.

Some of the points made were: “In period of public danger of apprehension, the protective law which gives every man security and confidence in times of tranquillity has to give way to interest of the State.” (CJI A.N. Ray); Enforceability, as an attribute of a legal right, and the power of the judicial organs of the State to enforce the right, are exclusively for the State, as the legal instrument of Society, to confer or take away in the legally authorised manner.” (Justice Beg); “Personal liberty is but one of the Fundamental Rights... therefore the suspension of the right to enforce the right conferred by Article 21 means and implies the suspension of the right to file a habeas corpus petition or to take any other proceeding to enforce the right to personal liberty conferred by Article 21.” (Justice Y.V. Chandrachud); “The Constitution... if it says that even if a person is detained otherwise than in accordance with the law, he shall not be entitled to enforce his right of personal liberty, whilst a Presidential order under Article 359, clause (1) specifying Article 21 is in force I have to give effect to it.” (Justice Bhagwati).

This was an anti-constitutional and anti-people decision. But in the true spirit of Rabindranath Tagore’s words, Justice Khanna held: “If they answer not to your call, walk alone.

“But Article 21 cannot be considered to be the sole repository of the right to life and personal liberty. The right to life and personal liberty is the most precious right of human beings in civilised societies....”

Justice Khanna said, “The cases before us raise questions of utmost importance and gravity, questions which impinge not only upon the scope of the different constitutional provisions, but have impact also upon the basic, values affecting life, liberty and the rule of law... What is at stake is the rule of law. If it could be the boast of a great English judge that the air of England is too pure for a slave to breathe, cannot we also say that this sacred land shall not suffer an eclipse of the rule of law and that the Constitution and Indian laws do not permit life and liberty to be at the mercy of absolute power of the executive, a power against which there can be no redress in courts of law? Even if it chooses to act contrary to law or in an arbitrary and capricious manner... The question is whether the laws speaking through the authority of the courts shall be absolutely silenced and rendered mute because of such threat.”

Rights in Kashmir

That was during the Emergency. Today, there is no Emergency, yet the constitutional and basic rights of scores have been suspended in Jammu and Kashmir (J&K). Worse, the Supreme Court has virtually taken away their constitutional remedy to enforce those rights. Regrettably, the court has treated habeas corpus petitions in a most casual manner by justifying negation of the rule of law. Two episodes — though not directly connected — have left us searching for answers as to functioning of the court.

While adjourning for two weeks, a writ petition challenging the imposition of restrictions in Jammu and Kashmir, following the abrogation of Article 370, a bench of the top court, on August 12, 2019, merely accepted the pleas of the Attorney General on behalf of Centre to the effect that, “we have to ensure that law and order situation in Jammu and Kashmir is maintained and that it will take a few days to return to normalcy.” It further observed, “the situation is such that nobody knows what exactly is happening there. Some time should be given for bringing normalcy”.

In other words, the top court — the custodian of the right to life and liberty — handed over its duty to the Central government. Subsequently, on August 16, another court bench hearing writ petitions on lifting the communication ban said, “let us give it a bit of time” and adjourned these matters to an unspecified date. During the hearing, the Central government urged that “things will settle down in next few days” and that “these are security related issues that are best left to the government and armed forces”.

The court’s handling of these cases is a harsh reminder of the ADM Jabalpur case. More than a million people have been locked down in one of the biggest clampdowns by the Indian armed forces; and all under the cover of Section 144 of Cr.P.C. Article 21 is about life and liberty, and all that the Supreme Court has done is to defer these crucial matters without taking the government to task. In the first instance, the state failed “to ensure normalcy” from the day it abrogated Article 370; it has now tried to buy more time from the top court to do so. The “situation is such that nobody knows what exactly is happening there”, but that is precisely why it is the duty to court to ascertain true facts. It cannot shy away from doing justice in the name of “security” and “law and order”.

It is not suggested here that the security of the nation can be compromised; nor can one argue that law and order ought not to controlled. But preservation of both is the duty of the state. If it intends to do so by taking away fundamental and basic human rights then one can infer that the state has failed in its duty.

An individual’s rights

Equally, the court’s approach to protecting the rights of individuals is disturbing as seen in the case of the former Union Minister P. Chidambaram. On August 14, 2017, the Supreme Court entertained an SLP filed by the Central Bureau of Investigation (CBI) on the same day, included in the supplementary list as the last item before the Court of the CJI. The order of the Madras High Court appealed against was stayed. On February 22, 2018, the Supreme Court entertained the CBI’s interlocutory application on being mentioned and listed it for the next day. In both these cases, the respondent was Karti P. Chidambaram. Contrary to these actions, on August 21, 2019, it shied away from entertaining a petition by Mr. P. Chidambaram on super technical grounds. On August 16, a court bench entertained a petition filed by the Serious Fraud Investigation Office, on the same date and stayed the order of the Madras High Court. The reluctance to even list the matter on the same day is disappointing.

It is not suggested for a moment that Mr. Chidambaram should not face the inquiry. But in a case where the retiring Judge of the High Court delivers the judgment after several months and in the afternoon (3 p.m.), virtually making it impossible for the petitioner to get relief from Supreme Court and which simultaneously fails to extend the interim protection which was operating for this period, is a case where the top court should have intervened. In its actions, the top court that made the right to anticipatory bail sacrosanct (Gurbaksh Singh Sibbia Etc vs State Of Punjab, 1980) has now made it infructuous. Does the judiciary have to be reminded of the fundamental principle, actus curiae neminem gravabit (no person should be prejudiced by an act of Court)?

The judiciary needs to dispel the perception that it is no longer the pillar created to protect constitutional and legal rights. In any failure, its stature and status as the “bulwark of the rule of law and the democracy” will be compromised.

Dushyant Dave is Senior Advocate, Supreme Court of India