Has Judiciary failed the people?

 

 

Has Judiciary failed the people?

In my class rooms I used to take immense pride in telling the students that our Constitution  ensures independence of Judiciary and that the Supreme Court, as the custodian of the constitution, safeguards the fundamental rights of citizens, checking abuse of executive authority by exercising its power of Judicial Review.  However, of late it is a painful realization that the individual rights are violated to subserve the partisan political ends and the judiciary refusing to intervene.

The Article 32, which constitutes the fundamental Right to Constitutional Remedies, states: “The Supreme Court shall have power to issue directions or orders or writs…for the enforcement of any of the rights.” When it comes to violation of fundamental rights, an individual can approach the High Court, under Article 226,  or the Supreme Court directly, under Article 32,  to protect his rights and the Court has the power to issue the writs, namely:  Habeas corpus- an order calling upon the person who has detained  to produce the detainee  before the Court in order to let the Court know on what ground he has been confined and to set him free if there is no legal justification for the detention; Mandamus- directing public officials, governments and lower courts to perform a statutory duty; Quo warranto- to show by what warrant is a person holding public office; Prohibition- directing judicial or quasi-judicial authority to stop proceedings which it has no jurisdiction for; and Certiorari- to re-examine an order passed by judicial, quasi-judicial administrative authorities. According to Justice Durga Das  Basu,"the power of the High Courts to issue these writs is wider than that of the Supreme Court...a High Court can issue these writs not only for the purpose of enforcement of Fundamental Rights but also for the redress of any other injury or illegality, owing to contravention of the ordinary law". And the Courts' reluctance to exercise this power is seriously hampering the cause of justice.

During the Constituent Assembly debates, Ambedkar said about the Article 32: “If I was asked to name any particular Article in this Constitution the most important- an Article without which this Constitution would be a nullity- I could not refer to any other Article except this one.  It is the very soul of the Constitution and the very heart of it.” The strength of a democracy lies how secure are the citizens’ rights. Unfortunately, today the Supreme Court is reluctant to enforce the Article 32- part of the basic structure of the constitution- to check the abuse of power and authority by the agencies of the State. About 550 petitions were filed in the Supreme Court, seeking the writ of habeas corpus, following the arbitrary detention of hundreds of people, after the abrogation of special status of J&K and dismembering the state on August 5, 2019.  These Petitions are not yet listed for hearing, while the people illegally detained are languishing in jail.  Could there be anything more inexplicable and morally repugnant! The operation of Article 32 may be suspended during a national emergency, declared under Article 352. There is no such emergency.  However, the situation on the ground is worse than the emergency.

Pratap Bhanu Mehta sees the emergence of "democratic barbarism, where every issue is seen as partisan combat, is aided by judicial power.” And “the purpose of politics is no longer equal justice for all: It is to convert politics into a game of victims and oppressors and ensure that your side comes up the winner.”  The Supreme Court “has refused to do timely hearings of cases that go to the heart of the institutional integrity of a democracy: The electoral bonds case, for example. It is no secret that the rules for the grant or denial of bail by the Supreme Court, and, correspondingly, by several high courts, have reached new levels of arbitrariness.” More so in the cases in which the Court has refused to act in defence of citizens and activists, who have been victimized for their protest and dissent, exercising their fundamental right to freedom of speech and expression.

As a senor Advocate Navroz Seervai says, “Millions of migrants trapped by a thoughtless, heartless lockdown; the state of J&K deprived for months on end of the internet; the same state…where hundreds who were, and still are, illegally detained, the SC resolutely set its face against hearing these matters, thus ensuring that they continue to languish in illegal detention.” The Supreme Court did not show any urgency to examine, inter alia, the constitutional validity of abrogation of Article 370 and the Citizenship (Amendment) Act (CAA), and its inaction leading to a situation where upon the people would be forced to accept the changes arbitrarily brought about, by subverting the well laid down norms, as fait accompli.

However, when it comes to individuals who are close to the political establishment, the court took a lenient view. The case of Arnab Goswami-the Republic TV editor-in-chief- is a striking example. His Petition, under Article 32, challenging his arrest by the Mumbai Police on the charge of abetment to suicide of an interior designer, was admitting by the Supreme Court, giving it a top priority.  Justice Chandrachud, in his Order November 11, ordered his immediate release on bail to protect his personal liberty, stating that "if this court does not intervene today we are traveling on the path of destruction.”  And Kapil Sibal in a TV interview said that what Justice Chandrachud stated was his personal observation and there wasn’t any uniform procedure in the court with regard to entertaining bail application and granting of bail. In case of P. Chidambaram, according to Sibal, no such consideration was shown to him.

Earlier, on November 6, the Supreme Court Bench comprising of CJI S .A.Bobde, Justice A.S.Bopanna and Justice V.Ramasubramanian had issued contempt notice to the Assistant Secretary of Maharashtra Assembly who had questioned Arnab Goswami for approaching the apex court against the breach of privilege notice. The Bench observed that the right to approach the Supreme Court under Article 32 is itself a fundamental right and that “there is no doubt that if a citizen of India is deterred in any case from approaching this Court in exercise of his right under Article 32…it would amount to a serious and direct interference in the administration of justice.” 

In the case of another journalist Siddique Kappan, who was arrested on October 5, on his way to Hathras where a 20- year- old dalit girl was gang raped leading to her death, the Court has not shown such concern and he continues to remain in jail, after spending 45 days.  Similarly, the social activists like Sudha Bharadwaj, Vara Vara Rao, and Stan Swamy are languishing in jail without bail. How are the persons in their 80s, having serious health problems, virtually on death bed, a threat to national security that they don’t deserve to be released even on bail? In 2019, more than 100,000 people were lodged as under trails for more than a year. And 70% prisoners are under trials. Nearly 3 lakh bail applications are pending in High Courts and District courts. Who will compensate these unfortunate people for the suffering and the loss of reputation, if they are ultimately acquitted? The persons seeking bail in petty crime cases have to wait indefinitely for a court listing while high profile and influential persons get urgent hearing and instant relief.  Where is the equality before law?

It is important the Supreme Court addresses the popular perception that it is reluctant to intervene in the cases involving the government and that it is failing to discharge its constitutional obligation of protecting the people’s rights. The rule of law is not applied uniformly without fear or favor.  As the former High Court Judge Anjana Prakash says, "we are moving to a new system where discretion is displacing principles of law”. This trend must be arrested to restore people’s faith in the judicial system. At a time when the critics of the government are arbitrarily arrested and jailed by indiscriminately invoking the draconian colonial sedition law and the other stringent laws- the Unlawful Activities (Prevention) Act (UAPA), the National Security Act (NSA) and the Public Safety Act (PSA)- the judiciary is the only hope to secure justice.