November 24, 2019

Supreme Court Failings

Prakash Karat

THE Chief Justice of the Supreme Court, Ranjan Gogoi, retired on November 17.  Justice S A Bobde has taken over charge as the new chief justice of India.  This is an appropriate time to look at what is happening to the highest judicial court of the land.  The Supreme Court is entrusted with the duty of ensuring that the laws adopted by Parliament are in conformity with Constitution and that the constitutional rights of citizens are safeguarded. 

Unfortunately, over a period of time, there are disturbing signs of the Supreme Court failing to live up to its responsibilities and to act as the custodian of the Constitution.  That this is happening at a time when an authoritarian Hindutva regime is working to subvert the secular-democratic framework of the Constitution becomes a matter of serious concern. 

The period of Gogoi’s tenure as the Chief Justice was marked by the court’s increasing acquiescence with the executive; disregard for upholding fundamental rights of citizens and compromising with majoritarianism on matters of faith. 

A number of judgments have been delivered in the past one year which confirms these trends which are inimical for the independence and integrity of the judiciary.  The first failure has been on defending the fundamental rights of citizens.   The Supreme Court is considered to be a sentinel to protect the basic rights of citizens.  However, in the recent period, the court has failed to intervene to protect the fundamental rights of citizens in Jammu & Kashmir.  After the abrogation of Article 370 and the shutdown imposed on the state on August 5, there were a host of petitions filed in the Supreme Court regarding the restrictions imposed on citizens, including the detention of political leaders and activists. 

The manner in which the Supreme Court has dealt with these petitions is truly inexplicable.  Whether it is the habeas corpus petition   filed by Sitaram Yechury, general secretary of the CPI(M), regarding the detention of Mohd Yousuf Tarigami, or, the petitions regarding restrictions on press freedom, citizens’ right of movement, detention of minors – the Supreme Court has refused to act promptly and uphold the fundamental rights of citizens guaranteed under the Constitution.  A three-member bench was constituted to hear all the petitions in the above category, while a five-member Constitutional bench was set-up to hear the petitions regarding nullification of Article 370 and Article 35A of the Constitution.

The three-member bench of the Supreme Court has not yet given a verdict on any of the petitions, even though more than two months have elapsed.  Even the petition regarding the serious matter of young boys detained is being delayed after each hearing.  The next hearing is scheduled to be on December 3.  All that the Supreme Court three-member bench order of September 16 did was to direct the central government and the Jammu & Kashmir government “to ensure that normalcy is restored in Jammu & Kashmir on a selective basis and without compromising on national interest”. By this, the court gave the executive sufficient leeway to selectively relax restrictions and also made it conditional to not compromising with national interest. 

Delay in giving a judicial verdict is a form of “judicial evasion” which enables the government/executive to get away with a wrong measure or policy.  An example of such judicial evasion is the case against electoral bonds.  Here too, a bench headed by chief justice Gogoi heard the case before the Lok Sabha elections.  The question of electoral bonds being used by the ruling party to collect funds anonymously and get undue advantage was an urgent matter.  But after hearing the arguments, the court sought details of funding from the political parties to be given to the Election Commission in a sealed cover by May 30.  That is, after the polling was over.  After that nothing has happened further in the case.  Electoral bonds worth more than Rs 6,000 crores have been issued till now. 

The deference to the executive and a refusal to cross words with it bodes ill  for the judiciary in the coming days.

The Ayodhya verdict by a five-member bench of the Supreme Court reveals a failure to stand up for the secular principle enshrined in the Constitution.  While proclaiming its commitment to uphold constitutional values and the secular basis for adjudicating a property dispute, the net result of the verdict has been to give precedence to faith and belief of one side.  This compromise with majoritarianism will have serious consequences and embolden the Hindutva forces to further challenge the secular principle of the State.

A similar vacillation has been seen in the manner in which the review petitions on the Sabarimala verdict of the five-member constitutional bench has been dealt with. In a departure from the established norm regarding the hearing of review petitions, the majority judgment has referred general issues concerning matters being heard by other benches of the court to a wider seven-member bench and kept the review petitions pending.  The bench had only to see if there was discovery of new and important evidence, or, an error in the face of the record to allow a review. Instead of doing so, the majority of three judges have in a  circuitous way sought to re-open the historic judgment on women’s entry into Sabarimala delivered by the five-member constitutional bench.  Here again, the motivation for this unusual method is giving precedence to faith over the rights of women. 

The failures of the Supreme Court currently are not the result of any aberrant behaviour of a single chief justice, or, a handful of judges.  It is a product of the concerted effort by the government.  In the past six years, the Modi government has been intervening with regard to appointment of judges and their promotion as chief justices of various high courts. The last one being how Justice Akil Kureshi was stopped from being appointed as the chief justice of Madhya Pradesh High Court and sent instead to the Tripura High Court. 

At a larger level, the infiltration of the Hindutva ideology is taking place in all the institutions of the State. Sadly, the Supreme Court also does not seem immune to this.