The words ‘Thou art weighed in the balance and found wanting’, from the Bible (Daniel:5:27), were used by Sir Winston Churchill in 1938 to criticise Neville Chamberlain, the then British prime minister, for signing the shameful Munich Pact with Hitler. The same words could aptly be used for the Indian Supreme Court too, for its recent dismal, distressing, disheartening and discomfiting performances in repeatedly failing to protect the fundamental rights of the Indian people – which is its sacred and solemn duty under the constitution.
The constitution, promulgated in 1950, has a part (Part 3) containing certain ‘fundamental rights’ of the people. These fundamental rights incorporated the theory of the English political philosopher John Locke in his second treatise on civil government (1690) that every citizen had certain ‘natural’ rights, which even the king could not violate.
This theory was the basis of the Bill of Rights in the US constitution, as well as the Declaration of the Rights of Man in 1789 by the French National Assembly during the French Revolution. Under the Indian constitution, these fundamental rights were rights which even the legislature or executive could not legally violate.
But who was to ensure that they were not violated? This was the job of the judiciary, which was meant to be independent of the legislature or executive.
The Supreme Court and high courts were set up to act inter alia as guardians of the constitution and protectors of the fundamental rights of the people, and their judges take a solemn oath to uphold the constitution, which would include Part 3.
Thus, in the State of Maharashtra vs Bhaurao Punjabrao Gawande (2008) the Supreme Court observed that while the first object of the founding fathers was to give to the people a constitution whereby a government was established, their second object, equally important, was to protect the people against the government. The court observed:
“The imperative necessity to protect the people’s rights is a lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years of the freedom struggle, and had seen an alien government trample upon human rights which the country had fought hard to preserve. They believed, like Jefferson, that ‘an elective despotism was not the government we fought for ‘. And therefore while arming the government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that these powers were not abused to mutilate the liberties of the people “
In one of its early decisions in the State of Madras vs VG Row, the Supreme Court held, “As regards fundamental rights the court has been assigned the role of a sentinel on the qui vive”, an expression that has been reiterated again and again in several decisions of the court e.g. I.R.Coelho vs the State of Tamil Nadu, (2007), Navtej Singh Johar vs Union of India, (2018), Shakti Vahini vs Union of India, (2018), C.Ravichandran Iyer vs Justice AM Bhattacharjee ( 1995 ), Padma vs Hiralal Motilal Desarda (2002), Bachan Singh vs State of Punjab (1982), Indra Sawhney vs Union of India (1992), etc.
In the 13 judge constitution bench decision in Kesavanand Bharati vs the State of Kerala, (1973), the Supreme Court observed, “The constitution has entrusted to the judiciary the task of safeguarding the fundamental rights of the people “. In that decision, the court also observed that the judicature is the guardian of the constitution and can check legislative or executive action, and the same view has been taken in National Legal Services Authority vs Union of India, (2014), Raja Ram Pal vs Hon, Speaker (2007), etc.
As held in Navtej Singh Joha , once a violation of the fundamental rights of a citizen or a group of citizens is brought to the notice of the court, the court cannot remain a mute spectator. As held in Shakti Vahini vs Union of India, when there is a violation of fundamental rights, the court cannot choose the path of silence.
The Supreme Court observed in C. Ravichandran Iyer vs Justice AM Bhattacharjee:
“Under the constitution, it is the judiciary which is entrusted with the task of keeping every organ of the state within the limits of the law. The judiciary must protect the citizen against violation of his constitutional or legal rights, and it must stand between the citizen and the state as a bulwark against executive excesses, and misuse or abuse of power by the executive “.
In Shakti Vahini vs Union of India, the court observed, “Once a fundamental right is inherent in a person, intolerant groups cannot scuttle the right by leaning on any kind of philosophy, or self-proclaimed elevation.”
This being the settled constitutional position, we may now ask whether the Supreme Court of late has been doing its solemn duty of protecting the rights of the people. It must be regrettably said it has not, rather the impression which has been created by its recent verdicts, orders and actions (including its inactions) is that it has, with some exceptions, largely surrendered before the political executive, instead of behaving like an independent organ of the state which it was expected to be. Consider the following:
1. The Ayodhya judgment will go down in the annals of Indian legal history in the same category as the shameful ADM Jabalpur vs Shivakant Shukla except that unlike the latter, in this one there is not a single courageous dissent. In substance, the court has held that might is right. It is like a bully snatching a sandwich from a child in school, and the teacher giving a ‘balanced decision’ that the bully can keep the sandwich, and the child will be given a slice of bread as restitution.
2. The Supreme Court collegium recommended that Justice Kureshi of the Bombay high court to be appointed as chief justice of the Madhya Pradesh high court. Instead of making the appointment, the government sent the recommendation back to the collegium for no cogent reason. Thereafter the collegium should have reiterated its recommendation, and then in view of the verdict in the judges case the government would have had to make the appointment. But instead, the collegium disgraced itself by surrendering, and instead recommended his transfer as the chief justice of the much smaller Tripura high court.
3. The Supreme Court collegium had recommended the appointment of Gopal Subramanium, a senior advocate of the Supreme Court, and former solicitor general of India, as a judge of the Supreme Court. But the government objected as he had been a lawyer against BJP leader Amit Shah in the Sohrabuddin case. Instead of reiterating his name, the Supreme Collegium meekly surrendered.
4. After scrapping Article 370 of the constitution on August 5, 2019, there has been a clampdown in Kashmir, many restrictions imposed e.g. ban on internet, curfews, etc and many political leaders, including the 82-year-old former J&K chief minister Farooq Abdullah, are still in detention. Many petitions challenging the violation of the democratic rights of Kashmiris were filed in the Supreme Court, but the court, like Bheeshma Pitamah who refused to intervene in the ‘cheer haran’ of Draupadi, has turned a Nelson’s eye to the same. What then remains of the lofty doctrine proclaimed in Navtej Singh Johar and Shakti Vahini that, when there is a violation of fundamental rights, the judiciary cannot remain a silent spectator?
5. In the case of the Bhima Koregaon accused and professor Saibaba, the Supreme Court should have quashed the prosecution using the Brandenburg test – relied on in the cases of Arup Bhuyan vs State of Assam and Sri Indra Das vs State of Assam – but it did not even consider the same.
6. Abhijit Iyer Mitra should have clearly been granted bail in view of the decision of the celebrated Justice Krishna Iyer in the State of Rajasthan vs Balchand that bail, not jail is the normal rule, unless the accused is likely to abscond or tamper with the evidence, or has been accused of a heinous crime. Abhijit had only made a satirical tweet, for which he had promptly apologised as well. Yet his bail application was rejected, with a flippant and cruel remark by CJI Gogoi that the best place for him was in jail.
7. The brave police officer Sanjiv Bhat who gave an affidavit against Modi and his role in the massacre of Muslims in 2002 has been clearly victimised, and he should have been set free, but the Supreme Court refused to deliver justice in the matter.
8. Recently about 50 masked hooligans beat up students and teachers in JNU with the police apparently complicit, and about 30 persons were admitted to AIIMS, Delhi with serious injuries. The Supreme Court should have suo motu issued notice to the concerned authorities, and taken the guilty to task instead of turning a Nelson’s eye to the incident.
9. The UP police brutally beat up anti CAA protesters and even entered some houses – mostly Muslims – beat up the inhabitants and destroyed or looted property. Again, the Supreme Court took no notice, though this was widely reported in the media.
10. Within 72 hours of his reinstatement by the Supreme Court, the CBI Director Alok Verma was removed by a panel headed by Prime Minister Modi. The Supreme Court should have reinstated him, but did not do so.
11. Ever since the present government came to power there have been continuous attacks and victimisation of Muslims through lynchings, hate speeches, etc. A former Union minister even felicitated alleged lynchers. Instead of taking strong action against the lynchers, often the family members of the victim are harassed e.g. Akhlaque’s family. Surely it is the duty of the judiciary to grant protection, but it rarely does anything except utter homilies.
12. There is frequent and arbitrary use of sedition and preventive detention laws against those who criticise the govt, e.g. cartoonist Aseem Trivedi in Maharashtra, Professor Ambikesh Mahapatra of Jadavpur University in West Bengal, folk singer Kovan in Tamil Nadu, and Kashmiri politicians like Farooq Abdullah and others under detention, which make the right to liberty illusory.
13. Unfortunately, the Supreme Court nowadays rarely interferes in this gross violation of this most precious of all rights (vide Md Sukur vs State of Assam), although in one of its very first decisions in Romesh Thapar vs State of Madras, delivered in 1950 only a few months after the constitution came into force, it had held that in a democracy people had the right to criticise the government.
As Justice Katju previously wrote, the most important case in India today is not the Ayodhya appeal but the trial of the Supreme Court itself. We are afraid the people’s verdict is likely to go against the court unless it quickly recovers and resumes its role of guardian of the liberties and rights of the people.
Justice Markandey Katju is a former judge of the Supreme Court.
Janhvi Prakash is an advocate.