December 06, 2020

Meltdown: The Unravelling of the Indian Judiciary

Nilotpal Basu

IT was more than a coincidence that on November 26, 1949, Dr Baba Saheb Ambedkar as the chairman of the drafting committee presented the draft constitution to the Constituent Assembly. In its course, he made the famous observation, “We are giving ourselves a Constitution where one man will have one vote, but we are a long way from that day where one man will have one value”. He was articulating his insight on the extreme economic and social inequality in the Indian society. He had expressed himself repeatedly on the need for translating these ideas enshrined in the constitution. That generation of freedom fighters had fully fathomed the imperative of integrating the size and the diversity of ‘we the people’. Therefore, based on the foundational principles, our constitution rightly underlined the key importance of equal citizenship and the rights arising thereof as the cementing factor.

In translating this spirit, it sets out a constitutional scheme by precisely defining the powers of the three organs – executive, legislature and the judiciary with a definitive separation of their powers so that ‘check and balance’ could come into play to safeguard the constitution. However on November 26, 2020, the State confronted the workers and peasants who are on the war path to express their right to peacefully protest the laws passed stealthily at the behest of the executive on the strength of a brute majority. The executive’s obnoxious unilateralism has been certainly abetted by the unfolding failure of the judiciary to act as sentinel of the constitution.


The constitution very clearly assigned powers to the judiciary which underline its role. It is particularly more so for the Supreme Court. But, in the recent times we are witness to the spectacle of orders by the apex court increasingly converging with the pleas of the executive.

The most striking of such a convergence was evident on the Ayodhya dispute. The order itself while having observed that a criminal act was committed in the destruction of the Babri Masjid on December 6, 1992 and failing to provide any definitive evidence that a temple existed at the site of the Mosque, granted the right of building a temple.  This was a classic example of a verdict without dispensing justice.

Similar orders could be sited, but that would be a lengthy read. However, it needs to be stressed that our constitution is a classical document to clearly distinguish between the rule of majority and majoritarianism, honouring the foundational principle of equal citizenship as an inviolable concept.


During the Constituent Assembly debates in December 1948, the chief architect of Indian Constitution, had narrated the significance of Article 32, thus: “If I was asked to name any particular Article in this Constitution as the most important – an article without which this Constitution could be a nullity – I could not refer to any other Article except this one (Article 32). It is the very soul of the Constitution and the very heart of it”. Article 32 is a guaranteed remedial right that provides people a right to approach the Supreme Court for protection of their fundamental rights guaranteed under Part III of the constitution and this right cannot be suspended except during a period of emergency by the presidential order. Obviously, without this in the fundamental rights chapter, its enforcement cannot be ensured. It also follows that if the judiciary, of its own accord relinquishes Article 32, the entire edifice of PIL could stand jeopardised. It is this provision which makes the Supreme Court a guardian of the constitution and the final protector. Many other important provisions like the power of judicial review under Article 30 can be energised through the use of Article 32 by the Supreme Court and hence, the need to preserve this at any cost.

The current debate on Article 32 arises from the observation of chief justice of India, Bobde, on November 20, while adjourning the habeas corpus plea filed for the release of Kerala journalist, Siddique Kappan. The CJI observed “we are trying to discourage Article 32 petitions”.

The observation sounds bizarre in the light of what the CJI had remarked, “How dare he say? What is Article 32 for?” while issuing contempt notice to Maharashtra assembly secretary in the Arnab Goswami case.

It is not the fact of granting bail to Arnab Goswami which is under question; but the brazen asymmetry in facilitating similar consideration for other petitioners. Time and again the Supreme Court has looked away from the lack of evidence and blatant violations by the police and other central agencies. Overall, these have created an increasing perception that the apex court has acted more as an extension of the executive’s intention and actions which are not backed by provisions of law.


A prominent feature of the current governance by the Modi government has shown a propensity to criminalise dissent and protest. Any legitimate opposition to the government’s decisions and legislative changes have been de facto presumed to be illegal and unconstitutional. It will be a truism to state that such a presumption has no place, far less in provisions in the constitution. These provisions, on the contrary, make way for the citizen’s inherent constitutional right to oppose and contradict the government’s actions.

All these are being sought to be pursued on the basis of villifying the citizen’s dissent and protest as ‘anti-national’. Repetitive, as it may sound, the very term ‘anti-national’ finds no mention in either the constitution or in laws flowing from it. The most blatant of this pursuit is on evidence in the conduct of the NIA in the Bhīma Koregaon case, the arbitrary treatment of citizens protesting CAA-NRC by the UP administration through confiscation of property and putting up public holdings to identify the citizens who have been charged, the actions of Delhi police in pursuing the vicious communal violence in North East-Delhi. The essence of these actions by the official agencies amount to the manufacturing of a political narrative authored by the executive.

The recent experience of such a course has revealed two features. In the first instance, provisions of CrPC have been slapped which in most of the cases fail to hold up because of lack of credible evidence. The second aspect is of instances where knowing fully well that no credible evidences are available, provisions of UAPA, NSA or Sedition Act are being imported where the draconian provisions of the said Acts would lead to the incarceration of the citizens in prisons without trial and production of evidence. In many such cases, the police agencies including the CBI, NIA and even the ED are using such a tactic to persecute and repress without producing grounds for  invoking these draconian provisions and filing charge sheets.

This course highlights that sweeping generalisation of ‘anti-national’ and ‘urban naxals’ is used to fulfil this design. In fact, RTI queries have forced the home ministry to concede that even within the ministry procedures, there is no basis to identify and far less indict ‘urban naxals’.

But, despite this bizarre approach, the process continues undeterred. The imperative of examining the role of the judiciary becomes important in this context. The most painful experience has been the complete meltdown of the judiciary’s conduct in upholding the citizens’ constitutional rights and liberties.

This ‘new India’ judicial conduct is hammered in from incident after incident and case after case in the haphazard arrest of students and teachers after Delhi violence, in dealing with dissenters against the blatantly unconstitutional CAA, in persecution of veteran public intellectuals and social justice activists in the Bhīma Koregaon violence, and the blatant disregard of the political detainees in Kashmir.

Shockingly, the 83-year old Jesuit priest and tribal right champion, Fr. Stan Swami suffering from Parkinson’s disease was arrested in connection with Bhīma Koregaon. He had requested for a straw and a sipper in jail. Instead of granting him immediate relief, which would have been the most appropriate humanitarian response, the NIA court gave the agency two weeks’ time to reply. 

The Supreme Court refusal to take up major constitutional questions has been a major source of disappointment. While making out of turn allocations on cases of far lesser import, these refusals included the challenge to revoking of Article 370, CAA and the electoral bond scheme.

There is no need to underline the crucial nature of these cases impinging on the very nature of constitutional order and democracy. It is in the light of such gross actions of the Supreme Court, the bail order of Arnab Goswami was firmly questioned, so also the judiciary’s failure to question the arbitrariness in invoking draconian provisions which could have been otherwise dealt with ordinary provisions of criminal procedure. In one instance, the Allahabad High Court order was not allowed to remain in force by simply referring it to a larger constitution bench. This pertains to the naming of the accused on the confiscation of property. In fact, it is this lack of consistent judicial directions from the apex court that has emboldened the political executive to indulge in blatantly legislating on ‘love jihad’, despite the Allahabad High Court finding the freedom of choice of a partner to be a fundamental right of a citizen.

The discourse on the contempt case of the eminent lawyer, Prashant Bhushan, is another glaring instance of such a misplaced priority. The main import of Prashant Bhushan’s tweet which ‘provoked’ the apex court was this misplaced priority of the highest court. The legitimate question which arises is, far from securing the constitutional rights and freedoms of citizens, when the Supreme Court itself indulges in gagging criticism, the question will arise, whither constitutional courts and whither democracy!

While there has been widespread disappointment about the Supreme Court’s conduct, a large number of instances have emerged during this period to show that there is far greater sense of empathy, compassion and application of judicial mind from lower courts – the high courts and the sessions courts in dealing with issues concerning the defence of the constitutional spirit and order. The Mumbai high court orders on the issue of migrant workers, the Bombay High Court and the Gujarat High Court order on Covid management, Allahabad High Court order on detaching UAPA provisions in Dr Kafeel Khan’s case, similarly, Aurangabad Bench of the Bombay High Court and Madras High Court upheld the right of peaceful protest against CAA. Similar orders have been given by Jharkhand, Telangana and Tripura High Courts.

A detailed study of the bail orders by different courts on the Delhi communal violence related cases bring out the flawed approach of the Delhi police, by questioning the invoking of UAPA.

It is also heartening that a significant number of jurists and former judges of the High Courts and the Supreme Court have also come out with courage and conviction against the judiciary’s failure in checking miscarriage of justice. These interventions have enriched public discourse based on judicial wisdom and sensitising the citizenry on the imminent threat to the constitutional order.

It is well established that the fascistic tendencies do affect all aspects of ‘power’; sparing no organ of the State. It is in such testing times that the onus of safeguarding the constitution falls disproportionately on the shoulders of the judiciary. With brute majority, the majoritarian forces completely overwhelm both the legislature and the executive. These forces find their way in the occupancy of all constitutional positions with personalities who share these majoritarian beliefs. At the same time contemporary experience shows the complete undermining of independent institutions like the Election Commission, office of the CAG, RBI and so on and so forth which were designated to act as sentinels of the constitutional order. It is in such circumstances that onus is on the judiciary to act as bulwark against such invasion. It goes without saying that whatever be the perceived exigency that the executive may invoke, the constitutional rights of the citizens cannot be sacrificed. The absence of such steadfastness impacts public opinion inside the country, as well as globally to come to a conclusion that democracy is failing. A large number of opinions, columns and observations underlining the downhill journey of Indian democracy is being noticed in global media. Ultimately it is the citizens who have to collectively stem the rot. Fighting back the judiciary’s drift is part and parcel of the struggle against the increasingly authoritarian-majoritarianism initiated by the BJP/RSS inspired executive and legislature!