PRABHAKAR TIMBLE
The judiciary which is the sentinel, protector and custodian of the Indian Constitution is not inspiring the confidence of people as before as the guardian of democratic freedoms and constitutional ethics. Seriously speaking, the Supreme Court is on trial on the critical issue of the non-negotiable fundamental rights of citizens which are actually the natural rights of people. The language that it speaks in judgments is of high order but lacks conviction and the expected passion to put in practice. It is with the highest respect to this constitutional institution, it pains to submit, that in the recent months the Supreme Court is walking on the track of a toothless tiger abdicating its prime responsibility of defending the fundamental rights of the people. It is submitted with anxiety and regret that the recent orders of the Supreme Court is akin to the doctoral thesis of a law student concluding with polite recommendations to the Executive organ of the State offering no concrete reliefs to the people whose natural rights are not just infringed but massacred.
The latest judgment of the five-judge Constitution bench underlines the spectre of arbitrary and heavy-handed arrests too often to harass and humiliate citizens. It rules that the court’s power to give bail cannot be curtailed. What is significant about the judgment is the observation that the rights of the citizens are fundamental; it is not the restrictions that are fundamental. But in practice, the higher judiciary exhibited reluctance to grant bail to the arrests and custodial interrogation of political opponents. The courts have developed cold feet to protect the rights of citizens peacefully protesting against CAA, NRC and NPC from arrests and brutality by the police, especially in Uttar Pradesh. The higher judiciary which has shown activism to strike at executive excesses and police lawlessness in the past even on its own motion (suo moto) is today mute when politically motivated mobs with the tacit support of police are beating students and teachers at prestigious universities. The final crown of dishonour on the politicized Delhi police is put on the Martyrs’ Day when a 17-year-old fires at an anti-CAA march in the presence of cops or should we say escorted by the police. The Home Minister of the country has spit the choicest venom on the citizens who protest and dissent. This is followed by the communal outbursts of the ruling party politicians labeling protestors as anti-nationals. The police have been liberal to arrest people under the charge of sedition. Such a rule of the rulers is a collapse of the rule of law necessitating the judiciary to intervene as the constitutional watch-dog.
Abrogation of Article 370 is a different issue which appears to be a fait accompli unless upset by the Supreme Court. It is a topmost priority issue and cannot be allowed to rot in the docket of arrears. However, on guarding the fundamental rights of the people, the higher judiciary has failed the people of Kashmir. The opposition leaders in the state are under arrest for a long duration. There is a repetitive resort to Section 144 by the administration stifling the basic rights of the citizens. The internet shutdown which started in August 2019 still continues. A member of the NITI Aayog justifies the shutdown on the grounds that youth and people of Kashmir watch “dirty” pictures on the internet. With such communications cut, the worst hit is E-Commerce and other local businesses. All these curbs are widespread over the entire region. Such repetitive and widespread use of Section 144 and restrictions on citizens’ rights are constitutionally permissible if and only if there is declared emergency under Article 352. In many cases such restrictions are imposed by the administration without any publication of the orders to that effect.
The Supreme Court has paid lip service to this illegal and unconstitutional functioning of the governmental administration in Kashmir. The relief provided in the petition almost boils down to a request to the administration to review the internet shutdowns and restrictions (Anuradha Bhasin v/s Union). The court has also enunciated a set of guidelines for imposition of shutdowns and instructed the administration to follow the same. The administration which has thrown the constitutional requirements to the winds considers the Supreme Court shallow order as its victory and approval of its approach. What was naturally expected from the Supreme Court was an inquiry into the validity of the restrictions and an emphatic word on the legality of the same. As a custodian of the fundamental rights, this order is dismal. This becomes only a chapter of good intentions with no effective reliefs to the citizens and also no strictures on administration as deterrence.
The CAA petitions are before the Supreme Court and so also the NRC, NPR petitions. The legislation to confer citizenship based exclusively on religion is abhorrent under the Indian Constitution and definitely cannot be approved as our constitutionalism. CAA claims to award citizenship to persecuted refugees from six specified religions. However, there are no rational yardsticks specified in the law to understand and appreciate persecution.
A law passed by competent legislature is presumed to be valid. Though, a legal determination cannot be done guided by anti-CAA protests, the Supreme Court had sound grounds to grant a stay on operation of the law pending final determination, particularly at the pace with which the Uttar Pradesh government is proceeding. An immediate judicial intervention is also required in NRC, NPR as the registration authorities enjoy powers unaccompanied by a policy frame to declare persons as “doubtful citizens”. The documentation sought to be imposed is also under judicial scrutiny.
Looking at the rich past of the Supreme Court, there is no reason to lose confidence in this independent constitutional organ. However, the most recent ripples in the judiciary are wrinkles which shake the faith. The Supreme Court on trial also puts the Indian Constitution, constitutionalism and fundamental rights of citizens on a re-test and re-examination.
