Something worrisome happened Monday inside courtroom number 1 – of the Chief Justice of India. Hearing a PIL seeking FIRs against politicians and others over hate speeches, CJI S.A. Bobde expressed the courts’ helplessness in preventing riots, adding that the judiciary cannot handle the kind of pressure that was being brought on it to ensure peace in the aftermath of the worst riots in Delhi in decades.
“People think this (courts) can stop rioting… We can only deal with it after it has occurred… The kind of pressure on us, we cannot handle… We wish peace… But we know there are some limitations on judicial power,” the CJI-led bench was quoted as saying during the hearing.
Such helplessness doesn’t behove India’s top constitutional court, which has a history of going the extra mile to safeguard the rights and liberties of citizens.
But after wading into issues that were not even in its remit – trying to run Indian cricket, for example – the Supreme Court cannot plead such helplessness now. CJI Bobde’s remarks don’t do justice to the immense faith that citizens have in India’s judiciary.
Damaging people’s faith
The Supreme Court is wrong to hold that the people’s belief in the court to stop riots could be misplaced. Despite some recent cases where the court fell short of the people’s expectation as the protector of their rights guaranteed under the Constitution, the faith in the Supreme Court continues to be much more than in the political class and the executive.
If not the Supreme Court, then who can the citizens, left to fend for themselves against murderous mobs instigated by India’s unscrupulous politicians, look up to for protection? And if the courts adopt an I-can’t-be-bothered attitude, then the damage to the judiciary’s prestige and the people’s faith in it will be immense.
Public memory may be short, but it is not that short that people will forget just how easily the Supreme Court pleaded helplessness in planned communal riots that saw more than 40 people killed. They won’t forget that the same Supreme Court had all the time in the world to take up issues like the entry of women of menstruating age into the inner sanctum of the Sabrimala temple or whether Delhi residents should burst crackers during Diwali.
Why can’t the Supreme Court grant the petitions on Kashmir clampdown and the habeas corpus pleas the same kind of immediate attention and hearing it reserved for Mumbai’s Aarey case? Shouldn’t the right to life and liberty trump everything?
But this is where India’s courts, particularly the Supreme Court, have gone wrong in recent times. The courts need to get their priorities right.
A lesson to emulate
In the early 2000s, when cases of violence against newly married inter-caste couples following arbitrary and illegal diktats by khap panchayats were on the rise, the Punjab and Haryana High Court was besieged with pleas for protection from murderous members of the khaps.
As the cases kept piling and Haryana Police, which had a history of being partisan to such khaps, was doing precious little to protect the runaway couples, then chief justice of the high court summoned the DGPs of Punjab and Haryana as well as the inspector-general of Chandigarh, the senior-most police officer. After giving them a tongue-lashing in open court, it passed an order placing the responsibility of protecting the life and liberty of the fearful couples on the DGPs, making them personally liable in case any harm was done to them.
“We will hold you personally responsible along with the district SP if even one death occurs,” the bench told the DGPs. The message was received loud and clear and that was the last we heard, for a long time at least, of self-styled khap panchayats trying to cause bodily harm to young couples in love.
And, like the recent violence in Delhi, where it is amply clear that the Narendra Modi government (to which Delhi Police reports) played a partisan role, then government in Haryana too was reluctant to act against the powerful khap panchayats. But it all took a firm nudge from the court to get the police to act.
Courts, realise your powers
Instead of showing helplessness, the Supreme Court can draw a lesson from the action of the Delhi High Court on how to prod the police into doing its job without fear or favour. Not only did Justice S. Muralidhar hold a special hearing at his residence and force the police to shift riot victims to another hospital for better treatment, but he also made Chief Minister Arvind Kejriwal visit affected areas in northeast Delhi. So, the Supreme Court does have the moral power to enforce accountability and action, if it chooses to use it.
What’s more, the midnight transfer of judge Muralidhar, hours after him posing several uncomfortable questions to Delhi Police on its inaction over hate speech by politicians, should have made the courts see their inherent powers. Governments, it is clear, do worry when their actions – or inactions as in the case of Delhi riots and hate speeches – are questioned by a court.
While Union Law Minister Ravi Shankar Prasad was right to assert that the transfer had been recommended by the Supreme Court collegium and that the Modi government was only implementing it, the timing of the transfer leaves several questions unanswered.
It couldn’t have been a coincidence that the orders came within hours of the strong observations by the bench headed by the judge.
The Supreme Court should assert its role as the final arbiter of all things constitutional, particularly when they deal with the citizens’ right to life and liberty.
This is the only reason why it can’t show any weakness.
The author is a senior journalist. Views are personal.
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