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Wednesday, June 16, 2021

In ruling on Shaheen Bagh protests, Supreme Court can rescue its image

Unfortunately, in the last few years, the image of the SC has taken a beating. It has suffered at the hands of its own.

Written by Rekha Sharma |
Updated: February 12, 2020 11:36:54 am
Opportunity for the court The SC is the custodian of the Constitution and the last hope of a citizen against the tyranny of the state.

No legislation in the recent past has triggered so much unrest and apprehension among people as the Citizenship Amendment Act (CAA) of 2019. It has led to protests, which have spread like bush-fire across the country, involving all sections of the society from university students to the common man, eminent citizens, members of civil society, leading Bollywood personalities and women in particular.

The angst against the Act can be gauged from the fact that for over 57 days, women with small children are sitting on a round-the-clock dharna at Shaheen Bagh braving all odds. Many state assemblies, in an unprecedented move, have passed resolutions opposing the CAA. The government is not willing to take a step back nor has it shown any inclination to open a dialogue with the protestors to allay their fears. Meanwhile, as many as 144 petitions have reportedly been filed in the Supreme Court challenging the constitutional validity of the Act. Thus, all eyes are now set on the Supreme Court. What has made the situation worse is the death of a child at Shaheen Bagh.

The SC is the custodian of the Constitution and the last hope of a citizen against the tyranny of the state. It is hoped that the Court will rise to the occasion and meet the challenge posed before it in terms of the Constitution, and more particularly, its Preamble, and will not fail the nation as it did in the ADM Jabalpur case. By a majority of 4:1 it was held in ADM Jabalpur that a person has no right to move a court for enforcement of right to personal liberty guaranteed under Article 21 of the Constitution, upon being detained under a law providing for preventive detention. This judgment haunted the Supreme Court for 41 years, until it was over-ruled by a nine-judge bench in 2017.

Of late, with the greatest of respect to the Supreme Court, an impression has been created that the judiciary is skirting issues involving the fundamental rights of citizens, and that it is showing reluctance to deal with such issues promptly. The challenge to the CAA, which is at the core of agitations throughout the country, has not been treated by the SC with the urgency it deserves. The nation is burning, and yet the Court has constituted a nine-judge Bench to deal with the Sabarimala case, which was neither so urgent nor required to be given precedence.

Opinion: Anti-CAA protests by Muslim women are about where, how and why you belong

Is it for the SC to find a solution for the difficulties, actual and imaginary, faced by the commuters, or is it for the law and order agencies working under the Centre? Should those agencies who are fully empowered to deal with a situation like this be allowed to shift the onus on to the shoulders of the Supreme Court? But now that the matter has reached the SC, let this opportunity be not allowed to slip by to make clear to all and sundry, to those in power, as to what are the rights guaranteed by the Constitution to the citizens, and when, how, and in what circumstances they can be asserted, keeping in view the fact that every citizen has the right to fight for his rights and fight till the end.

Unfortunately, in the last few years, the image of the SC has taken a beating. It has suffered at the hands of its own. While, a sitting chief justice fell short of facing impeachment, the image of another suffered badly on account of charges of sexual harassment. Before that, the judges themselves directly approached the media, and went public against their own chief justice, accusing him of putting democracy in peril. We presently have a chief justice who enjoys the reputation of being devoted to the cause of justice. We hope he and his colleagues will rise to the occasion and to the hopes and aspirations of beleaguered citizens. Let me end by quoting poet James Russell Lowell:

Once to every man and nation comes the moment to decide/In the strife of Truth with Falsehood for the good or evil side.

This article first appeared in the print edition on February 12, 2020 under the title ‘Opportunity for the court’. The writer is a former judge of the Delhi High Court.

Also read | Express Editorial: It is not the protests that threaten to divide, their demonisation does that

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