After initially suggesting that parliament is incapable of debating the issue of “freebies”, Chief Justice of India (CJI) N.V. Ramana retreated a few days later in what looked like a confession about the constraints of the judiciary in a parliamentary democracy. But the country is passing through such a bleak stage that even occasional reiterations of constitutionalism are cause for celebration.
Also recently, another bench of the Supreme Court, led by the CJI in-waiting U.U. Lalit, granted regular medical bail to veteran poet Varavara Rao, after a long wait of 18 months. But the supreme custodian of the civil liberties of the individual has not shown any indication to reconsider the Bhima-Koregaon case – despite the mounting evidence of its infirmities.
Thus, these silver linings raise an important question about the Indian judiciary. Are the highest courts of the country trying to champion the cause of the constitution or trying to play a balancing act in the face of authoritarianism?
For example, last month a bench led by Justice D.Y. Chandrachud granted bail to journalist Mohammed Zubair almost unconditionally.
“We can’t say that he won’t tweet again. It is like telling a lawyer that you should not argue. How can we tell a journalist that he will not write?” observed Justice Chandrachud on July 20, while hearing a petition by the journalist challenging the cases filed against him by the Uttar Pradesh police.
This observation – and the tone of the judgment – provided a measure of relief to the country. The bench clearly saw through the motives of the state in repeatedly arresting the fact-checker, who had become an irritant to the politics and the ideology of the ruling party and government.
But even before the ink on this bail order dried, the Lucknow bench of the Allahabad high court on August 4 denied bail to another journalist, Siddique Kappan, who has been languishing in jail for two years. He was arrested on conspiracy charges while on his way to Hathras, to report on the rape-and-murder of a Dalit woman. Justice Krishan Pahal declared that Kappan “had no work in Hathras” and that his trip with “co-accused persons who don’t belong to [the] media fraternity is a crucial circumstance going against him”.
The judge did not explain the judicial rationale behind considering a journey with alleged members of the Popular Front of India (PFI) as sufficient grounds to deny bail – especially when the PFI is not a banned organisation.
This logic exposes not just the glaring irrationality of the judgment but also the unseemly spectacle of a judge of a constitutional court – which is supposed to safeguard freedom of the press – scripting do’s and don’t’s for a supposedly independent media. Similar instances have occurred with journalists from Kashmir and the Northeast.
Thus, for every Zubair or Varavara Rao who receives bail, there are many more jailed Kappans – whose cases make the euphoria around Justice Chandrachud’s judgment short-lived. This fragility of the Indian justice delivery system stems not from the subjectivity of individual judges in interpreting facts or statutes but from institutionalised arbitrariness in applying the fundamental principles of justice, especially in cases that discomfort the ruling elite.
A clear example of this dissonance between principle and implementation can be seen in the contrasting manner in which one bench of the apex court upheld the patently draconian provisions of the Prevention of Money Laundering Act just two weeks after an earlier bench had underlined the importance of curbing the abuse of investigative process.
On July 11, the bench of Justices S.K. Kaul and M.M. Sundresh stressed the paramountcy of individual freedom by ruling that bail is the rule and jail is an exception. The bench went to the extent of assuring citizens that “in a democracy, there can never be an impression that it is a police state as both are conceptually opposite to each other” and asked the government to introduce a comprehensive law on bail, based on established principles. Thus, the judgment laid down the principle that individual liberty by way of arrest should be only resorted to in extraordinary conditions, when it is absolutely necessary to meet the ends of justice.
This was also well in tune with the concerns expressed by Chief Justice of India N.V. Ramana in a legal services meet in Jaipur on July 16. The CJI nailed the problem by observing, “In our criminal justice system, the process is the punishment. From hasty indiscriminate arrests, to difficulty in obtaining bail, the process leading to the prolonged incarceration of undertrials needs urgent attention.” Later, speaking at the Rajasthan assembly, the CJI also bemoaned the fact that the space for the opposition is diminishing and differences are met with hostility, resulting in the degeneration of democratic institutions.
His comments were made as the BJP-led Union government is facing allegations of using investigating agencies like the Enforcement Directorate (ED) and the Central Bureau of Investigation (CBI) to target opposition leaders to engineer a split or silence them.
The data also backs up the claim that the Narendra Modi government is using the ED to deliver political results. While instances of the ED using the Foreign Exchange Management Act (FEMA) and the PMLA have increased five-fold after Modi came to power in 2014-15, its conviction rate is dismal.
The ED also got a boost after amendments to the PMLA made it as draconian as the Unlawful Activities (Prevention) Act (UAPA). Bail under the PMLA can be denied even after the chargesheet is filed, if the accused fails to prove the twin conditions of proving his innocence at the stage of bail itself and also “prove” that they are not likely to commit any crime while on bail. This inverts the principles of natural justice by shifting the burden of proving innocence onto the accused.
Unlike in other criminal cases, the ED is not obliged to serve the equivalent of a first information report (FIR) to the accused. Thus, the PMLA has become a classic instrument in the hands of the ruling government which in effect is “shrinking the space of the opposition” and thwarting “democratic dissent”. Thus, it gives a “clear impression of a police state”.
Still, on July 27, a bench headed by Justice A.M. Khanwilkar upheld all the amended PMLA provisions as fundamental requirements to curb the crimes of money laundering, which according to the bench is equal to or worse than acts of terrorism. This judgment has thus strengthened the authoritarianism of the government and made the judiciary culpable in “making the process itself a punishment”, leading to “hasty and indiscriminate arrests, and difficulty in obtaining bail” – which were identified by the CJI as the bane of the justice delivery system in India.
Much has been said and written about the disturbing consequences of the PMLA judgment and other recent judgments by benches led by Justice Khanwilkar, especially in the cases involving human rights activists like Teesta Setalvad and Himanshu Kumar. Suffice it to say that such judgments only raise serious suspicions, once again, about the institutional capacity of the Indian judiciary to safeguard the liberal values enshrined in the Indian constitution against authoritarian onslaught.
The judiciary’s views on welfarism and neoliberalism
This question also assumes more serious proportions when the economic rights of the people are involved.
While in the cases related to individual liberty, the judiciary is of late making dangerous exceptions to serve the political ideology of the ruling dispensation, in the economic domain, it is repositioning its constitutional role to privilege the interests of corporate capital over the welfare of the people.
The recent observation by a CJI-headed bench – dealing with a PIL asking the top court to restrain political parties from promising ‘freebies’ during the election – is one such dangerous development in that direction. The PIL was filed by a BJP advocate who was otherwise considered an irritant and admonished by the SC many times for wasting the court’s time by filing politically motivated PILs.
But this PIL, asking the SC to constrain the welfarist responsibilities of the state by portraying ‘freebies’ as an unethical influence on the voters – was filed following clues from Modi himself and institutions like the NITI Aayog and RBI. While the prime minister recently ignited a discussion on “revdi culture“, the NITI Aayog and RBI have advised state governments to contain their expenditure on welfare activities.
Thus, there was almost a consensus among the ruling elites to put a cap on the welfarist expenditure of the state and use these resources to create infrastructure to attract corporate investments. This policy itself is an outcome of the paradigm shift in development discourse which, in the neoliberal era, considers the enabling of unregulated capitalism as the only route to progress.
The Fiscal Responsibility and the Budget Management (FRBM) Act demands the state reduce and progressively shun all expenditure on subsidies – be it for food, fuel, fertiliser, electricity or education. This, despite the fact that these subsidies have become an important lifeline for large sections of society.
Fortunately, the compulsions of competitive electoral democracy and the sway of coalition governments till 2014 at the Centre did not permit successive governments from taking any decisive steps towards rigidly enforcing the FRBM Act. Even the Modi government, which considered the employment guarantee scheme – MGNREGA – a monumental failure of the welfarist policies pursued by the UPA government, could not shun the project.
Thus, the ‘freebies’ PIL itself seems to be a shortcut found by the Modi government to abandon all welfarist measures as part of a court directive – thus avoiding the political cost.
The CJI bench considered this particular PIL in all earnestness and has made path-breaking observations – overriding the judiciary’s traditional conservatism in interfering with matters of public policy and economic affairs.
The judiciary’s willingness to cross the ‘Lakshman rekha‘ on the question of welfarism is alarming if one contrasts its views on petitions challenging the policy of disinvestment and privatisation of public enterprises.
Several petitions have argued that the policy of privatisation was an affront to the constitutional responsibility of the state – which is obligated by the directive principles to equitable distribution of resources and avoid concentration of wealth in the hands of a few. But the SC refused to intervene, citing the constitutional division of powers between the organs of the state, where economic matters are designated as the prerogative of the executive. In the famous telecom case (1996), the SC refused to stop the privatisation of the telecom industry by stating:
“Privatisation is a fundamental concept underlying the questions about the power to make economic decisions… Courts have their limitations because these issues rest with the policy makers for the nation. No direction can be given or is expected from the courts unless while implementing such policies, there is violation or infringement of any of the constitutional or statutory provision.”
In 2001, dealing with a petition challenging the disinvestment of BALCO, the SC reiterated the same principle with some more clarity:
“In the sphere of economic policy or reforms the court is not the appropriate forum. Courts are not intended to and nor should they conduct the administration of the country.. In a democracy, it is the prerogative of each individual government to follow its own policy. It is not for the courts to consider relative merits of different economic policies and consider whether a wiser or better one can be evolved. For testing the correctness of a policy, the appropriate forum is Parliament and not courts.”
When dealing with the policy of privatisation, the SC has opined that parliament is the suitable forum to discuss these issues and did not find any violation of constitutional or statutory provisions in privatisation and disinvestment.
But in the so-called “freebies” case – a policy matter which is as much part of the prerogative of the executive as privatisation – the judiciary is showing a certain eagerness to cross its limitations. The CJI even went to the extent of saying that parliament may not be the proper forum to debate the issue!
However, in a welcome development on August 11, the CJI retreated a little. He acknowledged two overreaches by the judiciary in this case. First, that the judiciary should not intervene in matters which are the exclusive domain of the executive. Second, that a distinction between welfare and “freebies” be made. Although this is a positive development, the CJI continued with his efforts to offer the judiciary as a parallel platform to parliament and even asked the parties to assist him before his retirement – thus making his observation bereft of democratic content.
Even though the welfarist imperative is embedded into the constitutional scheme, it is not mandatory – unlike the right to liberty or the rights related to political democracy. The rights related to economic democracy and social democracy and substantial economic and social rights are part of the directive principles of state policy, which cannot be enforced by the judicial authority.
Right from the beginning, there has been a structural mismatch between the demands for profit and the welfare of the people In the early years of independence, the higher judiciary was inclined to safeguard the rights of the haves against the have-nots. For example, the courts privileged the rights of landlords as a part of the right to property and prohibited reservations through a superficial interpretation of the right to equality. It was only through peoples’ movements and political unrest that parliament was compelled to bring in constitutional amendments to overcome these judicial obstacles.
Now in the neoliberal era, where the polity itself has shifted towards the right and people’s pressure via formidable movements is dwindling, the courts are adopting an interpretation of the constitution which will only boost the authoritarian impulses of the executive.
Shivasundar is a columnist and activist in Karnataka.