If there’s one institution in India that would not want to look back on 2019, it’s the judiciary.
Even by its poor track record in recent years, the Indian judiciary in 2019 added several new pages of ignominy to its name, letting down those who faced the Narendra Modi government’s disregard for constitutional morality and legality.
And leading from the front was the Supreme Court, which has been struggling to look past the unprecedented rebellion by its four most senior judges against then-Chief Justice of India Dipak Misra in January 2018.
But if the judiciary as a whole held any hopes on regaining some of its lost image in the eyes of the public, then 2019 clearly didn’t turn out to be that year.
The judiciary on most part seemed to side with the Modi government or at least found facetious reasons to give a wide, often questionable, latitude to it and its various agencies, most of them acting beyond the scope of settled principles of justice. This characteristic seems to have become the norm rather than an exception for India’s top judges in the higher judiciary.
Here are some instances from 2019 when Indian judiciary went wrong or failed in performing its constitutionally-mandated duty of upholding rights.
Post-370 J&K clampdown
It has been close to five months that residents of Jammu and Kashmir have been without internet service, which was snapped on 5 August when the Modi government stripped the erstwhile state of its special status by diluting Article 370 of the Constitution. For all practical purposes, Kashmir is under a government-enforced lockdown, and the media there is forced to function under severe constraints.
Dozens of senior leaders, including three former chief ministers – Farooq Abdullah, Omar Abdullah and Mehbooba Mufti – continue to languish in make-shift jails, one of them under the stringent Public Safety Act, because someone in the government worries that their independence might cause harm to India’s security interests.
To all these and much more, the Indian judiciary’s response, or the lack of it, has been worrisome, to say the least.
The issue of constitutional validity of the revocation of Jammu and Kashmir’s special status is pending before a five-judge bench of the Supreme Court.
Two months after J&K had remained under lockdown and a pile of writ petitions concerning individual liberties had accumulated, the Supreme Court on 1 October settled on a day for hearing that was one and a half months away – and finally began hearing the petitions on 10 December – more than 70 days later.
The judiciary’s disinterest could be gauged from how it hasn’t been stirred into action even after the death of a 65-year-old political detainee from Kashmir in an Allahabad jail. Ghulam Mohammad Bhat, booked under the Public Safety Act, was among 300 political detenues moved out of Kashmir after 5 August. He was scheduled to complete his detention on 9 January 2019, but died in jail.
Will this prompt the courts in the states where these ‘political prisoners’ are lodged to take up their cases? It’s anyone’s guess.
Citizenship Amendment Act
Several petitions challenging the constitutionality of the Citizenship Amendment Act (CAA) have been filed before the Supreme Court of India. Legal scholars, including a former Judge, have held the Modi government’s new legislation to grant citizenship to minorities from India’s three neighbouring countries on religious ground as “unconstitutional”. But the Supreme Court so far hasn’t seen any cause for urgency in the matter, and fixed 20 January as the next date of hearing.
The courts have responded to the slew of petitions challenging government action after the CAA with the same lack of seriousness that the judiciary had reserved for Kashmir.
State after state imposed Section 144, shut down the internet, had the police arrest or detain protesters, but the courts maintained their inertia. Police in BJP-ruled states of Uttar Pradesh and Karnataka opened fire at the protesters, with at least 25 people killed across the country. The dead includes an eight-year-old in Uttar Pradesh’s Varanasi.
Scores of videos of police brutality have emerged, where personnel could be seen entering houses in Muslim-dominated areas, looting and vandalising property, beating up men, misbehaving with women and children, detaining people on streets at random, barging into hospitals, or firing outside university campuses. Despite several petitions filed in the Delhi High Court and the Supreme Court, there has been no question asked by the judiciary from the government or the police.
Can anyone in this age imagine the police and state authorities getting away with such excessive action, or imposing Section 144 and internet shutdowns statewide? Isn’t this a mass suspension of fundamental rights?
‘Shame’ – and the court takes note
Several incidents in recent times put constitutional and legal morality under serious question. But the matter that really prompted the judicial system into action was the chant of ‘shame, shame’ by lawyers in the Delhi High Court who were seeking interim protection for students of Jamia Millia Islamia from the police’s “coercive action”.
The high court, apparently more affected by the chant, decided to form a committee the following day to look into the slogan shouting, even as it curiously did not do much to assuage the protesting students.
After straddling between mediators and an out-of-court settlement option, the decades-old Ram Janmabhoomi-Babri Masjid title dispute case finally became the Supreme Court’s responsibility. But the court’s Ayodhya judgment, albeit unanimous, gave rise to more questions than all those that it had set out to answer.
The title dispute was settled but not before the Supreme Court played a ‘balancing act’ and raised questions that will possibly remain forever unanswered. The court agreed that the site was used by both Hindus and Muslims and yet it awarded the land to Hindus.
Several cases of police encounters in the past have come under suspicion. But rarely has a case looked certainly as one of extra-judicial killing than the shooting dead of four rape-murder accused in Hyderabad’s Telangana region.
After remaining mute for an entire week as national euphoria over the killings led to a debate over ‘instant justice’ and its pitfalls, the Supreme Court finally woke up to set up an independent commission to probe the killings. From parliamentarians to the general public, everyone endorsed the killings, but it didn’t occur to India’s judiciary that it should have taken a suo moto cognisance to denounce the celebration and firmly reiterate its position on such incidents, for which it has laid out clear guidelines.
There were instances in 2019 when the judiciary managed to surprise us. The Gauhati High Court ordered to restore internet services in Assam when no other state or court had. The Madras High Court observed that unmarried couples staying in a hotel room won’t attract any criminal offence, when moral policing in society has only increased. And the Karnataka High Court came down hard on the state police and government for its three-day ban order under Section 144, terming a blanket ban as one that “violates the freedom of speech”, and holding that “an arbitrary and unreasoned order cannot be passed under Article 14”.
So, will 2020 be any better? One lesson that I have learnt as a student of Indian jurisprudence and a keen follower of all that happens both inside and outside our courts, is that holding high hopes from our current judiciary would be a folly. I can only hope I turn out to be wrong.
Days before he was to take oath as the 47th Chief Justice of India, Justice S.A. Bobde made all the right noises to lift our hopes that he would be different (better) than his predecessor – Justice Ranjan Gogoi.
The year 2020 will test his commitment to a free and fair judiciary.
The author is a senior journalist. Views are personal.
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