THE government recently increased the sanctioned strength of the Supreme Court from 31 to 34 judges, following a recommendation from the Chief Justice of India, Ranjan Gogoi, and also acted swiftly on the Supreme Court collegium’s recommendation to appoint three more judges. The increase, many believed, would help the court to render justice effectively to litigants.

However, if the recent hearings in the Supreme Court are any indication, the presence of sufficient number of judges to deal with the huge backlog of cases pending with the court for years is no guarantee that the court would perform its role of a sentinel on the qui vive (meaning “on the alert” or “vigilant”) far more effectively than it did in the past in defence of citizens’ fundamental rights.

Indeed, the court assumed for itself the role of the sentinel on the qui vive in 1952 itself when a Constitution Bench decided State of Madras vs V.G. Row. The court had quashed the unreasonable restrictions on the right to form associations and it was then that the Chief Justice of India, M. Patanjali Sastri, used that phrase to describe the court’s role.

In the aftermath of the Centre’s controversial withdrawal of the special status for Jammu and Kashmir and its bifurcation into two Union Territories followed by an unprecedented communications lockdown and illegal detention of thousands of political activists, many citizens expected the Supreme Court to play its role as sentinel on the qui vive. However, the court left many observers wondering whether the sentinel was sufficiently alert or was in danger of losing the plot.

On October 1, senior advocate Raju Ramachandran, representing Mohammed Yousuf Tarigami, the detained CPI(M) leader from Jammu and Kashmir, was seeking to persuade the three-judge bench of the Supreme Court, comprising Justices N.V. Ramana, R. Subhash Reddy and B.R. Gavai, not to dispose of Tarigami’s petition challenging his illegal detention just because the court facilitated his visit to New Delhi to avail himself of timely medical treatment. The bench was extremely reluctant to keep Tarigami’s petition pending and asked him to approach the Jammu and Kashmir High Court for relief.

When Ramachandran reminded the bench that another bench led by CJI Ranjan Gogoi had kept Tarigami’s petition pending to examine the validity of his detention, and to let him approach the court if there were restrictions on his movement in Srinagar, the bench asked him whether the High Court in Srinagar had stopped functioning and that, as Constitutional Courts, High Courts were as competent as the Supreme Court to decide whether such detentions were legal.

The Justice Ramana-led bench wanted to know what would happen if the Supreme Court declared Tarigami’s detention illegal. Ramachandran replied that such a declaration from the Supreme Court would enable the court to award compensation. Ramachandran also said Tarigami wanted to file an affidavit regarding the restrictions on his movement in Srinagar. The bench, in response, said that passing such orders would mean that the High Court in Srinagar was not functioning and added that keeping Tarigami’s petition pending would not help anybody. “Why do you insist that it should be heard here?” asked the bench. Ramachandran said it was a matter of liberty and that the court had intervened in similar cases earlier. The Supreme Court then made it clear that his petition could be listed for hearing in “due course” and that it would not be taken up immediately. The court asked the Centre to file its reply to the petition. The court pointed out that with the physical production of Tarigami, there was no urgency left in the habeas corpus matter and the challenge to the validity of his detention order could come up in due course.

Curbs on communication

The court responded in a similar fashion to a petition seeking the lifting of curbs on the Internet and communication services in hospitals in Kashmir. The petition, filed by Dr Sameer Kaul, spokesperson of the National Conference (N.C.), sought a direction to the Centre to desist and refrain from blocking or suspending the Internet and fixed phone services in hospitals and medical establishments in the future, along with the mobile phone connectivity of doctors and staff working in hospitals. Such curbs had serious consequences on the health of the State’s citizens, the petition argued. “Access to medical care is in Srinagar, and it can’t be accessed by people coming from remote places in the State,” the petitioner’s senior counsel, Meenakshi Arora, told the bench. She also explained how important access to the Internet was in the provision of health care, as many health schemes, including the Pradhan Mantri Jan Arogya Yojana, were linked to the Internet. Meenakshi Arora added that in the digital age, provision of medical services was dependent fully on the availability of the Internet and when that channel was not there, services could not be rendered effectively.

Dr Sameer Kaul submitted that specialised treatment required access to expert opinion and specially qualified doctors from bigger cities or other States; therefore, online communication became imperative. Procuring equipment for implants, drugs and surgical equipment or other medicines and instruments required for specialised procedures such as chemotherapy, radiotherapy and dialysis was done online, he added. Lack of access to the Internet, therefore, meant delays in treatment because of non-availability of pathology, blood, biopsy and other test reports, which were usually sent to advanced laboratories, he said.

Besides, there were other concerns such as poor availability of life-saving drugs and baby food items, which were mostly procured online. The inability of establishments to take part in virtual meetings of the National Cancer Grid was another instance of the limitations imposed by the ban on the Internet. The petition warned of catastrophic consequences with regard to the delivery of health, medical and emergency services if the Internet blockade continued.

Solicitor General Tushar Mehta argued that such claims were incorrect and misleading. He asked where the petitioners were when the state experienced a similar communication shut down for three months after the killing of the militant Burhan Wani in 2016.

The senior advocate Sanjay Hegde, representing another petitioner, promptly protested against the insinuations by the Solicitor General. The petitioners told the bench that the apex court should address the issue because the prevailing situation in the State was preventing them from approaching the High Court for remedy.

Unconvinced, the bench asked the petitioners to approach the High Court for removing restrictions on the access to the Internet and mobile services. It was apparent that the bench tacitly accepted the Solicitor General’s claim that the country would be flooded with fake news from across the border if mobile services were allowed in the State, with Justice Gavai observing that there was a need to balance liberty with national security.

In response to the petition filed by Anuradha Bhasin, editor of Kashmir Times, the Jammu and Kashmir government, in an affidavit filed before the Supreme Court, claimed credit for the “return of normalcy” to the State, with no deaths reported because of police firing. Anuradha Bhasin challenged the media blackout in Kashmir following the clampdown, which seriously compromised the right of journalists to pursue their profession and contribute to freedom of expression. Her petition was supported by an intervention application filed by the Foundation for Medical Professionals (FMP). While the well-known advocate Vrinda Grover represented Anuradha Bhasin, the senior advocate Dushyant Dave argued on behalf of the FMP.

In response to the Solicitor General’s claim of normalcy in the State, Sanjay Hegde said Article 21 could not be restricted to mere animal existence. “It means something much more than just physical survival,” he said, pointing to the Supreme Court’s observations in several cases earlier.

What it meant was that every limb or faculty through which life was enjoyed was protected by Article 21 of the Constitution and this included the faculties of thinking and feeling. Therefore, any act which damaged or injured or interfered with the use of any limb or faculty of a person, either permanently or even temporarily, was within the inhibition of Article 21, the courts had held earlier. The concept of “life” guaranteed in Article 21 did not connote “mere animal existence” or “continued drudgery through life”.

It had, as the courts explained in many cases, a much wider meaning which included right to livelihood, better standards of living, hygienic conditions in the workplace and leisure. As the bench posted Anuradha Bhasin’s plea for further hearing to October 16, many wondered whether the bench would lift the veil of normalcy as claimed by the State government in its affidavit and inquire whether it meant guarantee of life beyond animal existence.

The State government claimed in its affidavit that restrictions imposed in the State since August 5 were purely temporary, but, had become imperative given the history of the State, which was on the radar of terrorists. Such need-based restrictions, it argued, were reasonable and had the purpose of pre-empting inflammation of passions and rumour-mongering. As the State authorities were monitoring the situation closely, such restrictions would be eased or withdrawn whenever the situation so permitted, the State government contended.

It alleged that Anuradha Bhasin chose not to publish the Srinagar edition of her newspaper so as to keep her petition relevant. “Though other newspapers are being published from Srinagar, it is not understood as to which interest will be served by the Petitioner [Bhasin] by not publishing it from Srinagar and keeping the petition pending,” the State government said.

In a shocking revelation, the Jammu and Kashmir Juvenile Justice Committee in its report to the Supreme Court admitted that 144 juveniles, including children aged 9 and 11, were arrested following the August 5 clampdown. “Some of them were released the same day and the rest were proceeded as ‘juveniles in conflict with law’ under the Juvenile Justice (Care and Protection of Children) Act, 2013,” the report stated.

Illegal detention of children

On September 20, the court, while hearing the public interest litigation (PIL) petition filed by the child rights activists Enakshi Ganguly and Shanta Sinha, directed the committee to submit its report on the allegations of illegal detention of children. The State government dismissed the allegations as concocted and motivated.

The State has two observation homes to keep juveniles in conflict with law. Between August 5 and September 23, 36 minors were received at the observation home in Harwan, Srinagar. Of these, 21 have been granted bail and “enquiries are going on with regard to remaining 15”. At the observation home in R.S. Pora, Jammu, 10 minors were received, of whom six were granted bail. Inquiries are ongoing with regard to the remaining four, the State government told the committee. It would appear that the full picture with regard to the detention of minors was still not available even with official agencies. With the government denying media reports of illegal detentions of juveniles and with the court’s efforts to get the relevant facts yielding only limited success, the challenge before civil society in seeking accountability appears huge.

More worrisome, the Supreme Court’s tendency to pass the buck to the Jammu and Kashmir High Court even while the facts suggest that the latter is ill-equipped to deal with the huge number of habeas corpus petitions being filed before it reveals a deep-rooted judicial crisis. The High Court is said to have received over 250 habeas corpus appeals since August 5, but it is functioning with half its sanctioned strength of 17 judges.

The High Court, which currently has nine judges, including Chief Justice Gita Mittal, has recommended through its collegium seven eligible persons to be appointed as judges, but the Supreme Court’s collegium is yet to consider it. The last appointment to the High Court was in August 2018.

With only two judges dealing with habeas corpus petitions, many petitions get adjourned routinely because of the absence of counsel for the petitioners or the State government wanting more time than what is justified to file its response. No wonder, litigants turn to the Supreme Court to seek relief before loss of individual freedom becomes the new normal in the State.