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Justice O. Chinnappa Reddy was a “leftie”. In 1983, in a sterling example of a judge rising above his personal predilections to uphold constitutional liberties, he faulted the Madhya Pradesh government for sacking a teacher because his background check revealed his Jana Sangh and RSS affiliations. In no uncertain terms, he said that to deny employment to an individual on account of his past political affiliations is to introduce ‘McCarthyism’ in India.

Justice Reddy was also an atheist. That again didn’t stand in the way of his coming to the rescue of the children belonging to the Jehovah’s Witnesses sect, who while respectfully standing up for the national anthem in school did not sing it because their faith prevented them from doing so. In his judgement, he posed a question:

“It is evident that Jehovah’s Witnesses, wherever they are, do hold religious beliefs which may appear strange or even bizarre to us, but the sincerity of their beliefs is beyond question. Are they entitled to be protected by the Constitution?”

And, he unequivocally held that they were.

These two examples illustrate what some of the post-ADM Jabalpur judges did, almost with a vengeance, as if to wash off the sins of that unfortunate decision during the Emergency. And these judges went on to explore different dimensions of the right to life and personal liberty by insisting on fairness in the criminal process, imposing limits on pre-trial detention, declaring unreasonable bail conditions unlawful and so on.

In recent years, to the credit of the Supreme Court, it has delivered several notable judgments upholding fundamentals rights, such as the invalidation of triple talaq, the decriminalisation of homosexuality and the entry of women into Sabarimala. These broadly uphold “social” fundamental rights. However, it is difficult to assert even today that we have a consistent jurisprudence on civil rights such as liberty or free speech.

When leading judgments enunciate important constitutional principles, only clear, uniform and unwavering application of these principles can give rise to actionable rules that apply to specific cases. In declaring law for the entire country, the Supreme Court is duty-bound to lead by example. If it, instead, shifts back and forth between strong and weak enforcement of fundamental rights, it sends mixed messages to state authorities and to other courts in the country.

Also read: SC verdicts in 2G case, coal block allocation hurt Indian economy, says Harish Salve

Not a firm guarantee of liberty

The defining feature of Part III of the Indian Constitution, the code of Fundamental Rights, is that it offers a set of protections against state action. It is to ensure that these protections, which are in nature of guaranteed rights, are not reduced to empty promises that the Supreme Court has been vested with vast powers to invalidate any state action, legislative or executive, which violates the rights conferred under Part III. But the court in exercising this function has another role. As the chief interpreter of the Constitution, the court is required to demarcate with some clarity the areas of permissible state action. And this is where it has, over the decades, been found wanting.

The angst of post-Emergency judges has not resulted in a firm guarantee of liberty. The rules of arrest, the guarantee of fair and impartial investigation seem to vary from case-to-case. And there is enough case law in the court’s staggering body of precedent that judges can draw from to justify different outcomes even on the most basic aspects of the criminal process.

As Justice D.Y. Chandrachud noted in his dissenting opinion in the Bhima Koregaon case, “lofty edicts in judicial pronouncements can have no meaning to a citizen unless the constitutional quest for human liberty translates into securing justice for individuals whose freedom is under threat in specific cases.” In fact, more than lofty edicts, it is a clear and steady approach to fairness in the criminal process that can ensure the protection of Article 21 in both ordinary and extraordinary cases where the liberty of a person may be threatened by state action.

Also read: Why Rahmath Nisha judgment about a prisoner & his wife is a celebration of right to privacy

On free speech & artistic freedom

Similarly, the Supreme Court’s judgments on free speech, another civil right guaranteed in Part III, are often at odds with each another. In Shreya Singhal, while striking down Section 66A of the Information Technology Act, the Supreme Court compared the right under Article 19 (1) (a) to the First Amendment of the American Constitution, which offers a very broad protection to free speech. Yet, the same court within a year seemed to speak in a different tone in Subramanian Swamy when it upheld the archaic law of criminal defamation without affording defences such as due diligence, which are today available in civil law.

Artistic freedom fares no better, despite resounding declarations that the right of authors and artistes should be protected to the hilt under Article 19 (1) (a). When a ban on the movie Padmaavat was imposed by some states, the court unequivocally protected the right of the makers to exhibit their film. Yet, the court had, not long ago, countenanced a criminal charge against a poet who had chosen Gandhi as his subject by carving out an exception for historically respected personalities. The court’s rationale, as it notes in one of its orders, is that “artistic freedom be placed on a high pedestal but the same has to be judged objectively on a case to case basis”.

Just over a decade ago, a novelist had approached the Supreme Court questioning the forfeiture of all copies of his novel by a state government in exercise of powers under the Code of Criminal Procedure. The novel was about three saintly figures. A section of the society objected to certain portions of the book resulting in the ban.

While appearing for the novelist before the court, I was asked whether my client could be persuaded to remove the portions found offensive by the State. The author of the novel naturally refused to make far-reaching changes, which would affect the integrity of his work. The result was that the ban on the novel continued. Notwithstanding subsequent declarations of artistic freedom, that judgment survives to date as good law as a result of the court’s case-to-case jurisprudence.

Also read: In Aadhaar, Supreme Court did not probe if it is a tool to track citizens

Encouraging the state to violate

The right to privacy received a fresh lease of life as a result of the nine-judge bench judgment of the Supreme Court in Puttaswamy. The court categorically declared privacy to be a fundamental right inherent in the liberties guaranteed under Part III of the Constitution and prescribed a strict proportionality test to check any violation. A retreat from this strong expression of privacy in Puttaswamy (I) was implicit in the majority judgment of a five-judge bench of the court in Puttaswamy (II) where it found large parts of the Aadhaar machinery to be not violative of the right to privacy. The fact that the long pendency of the matter in the Supreme Court had permitted Aadhaar to infiltrate daily lives in an almost irreversible fashion might have been a “pragmatic” factor looming large in the judicial mind.

By failing to lay down reasonably clear boundaries for permissible state action, the court encourages the state to speculatively violate fundamental rights. The fact that justifications have to be weighed afresh on a case-to-case basis gives the state a window to defeat the right pending final adjudication. And with the strength of the Supreme Court now at 34, there can be seventeen Supreme Courts, each following a “case-by-case” approach.

The author is a senior advocate. Views are personal.

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