Way back in 1952, the Supreme Court said in no uncertain terms that when it came to fundamental rights, the Constitution had assigned it the role of “a sentinel on the qui vive”. As the Court turns 70 in a few months, is the sentinel sufficiently alert, or is it in danger of losing the plot?
The Emergency years are acknowledged as the Court’s most forgettable period, with the Court touching the nadir in the ADM Jabalpur case. Four judges out of five (with the honourable exception of Justice H R Khanna) accepted the government’s contention that the right to life and personal liberty did not exist under a proclamation of Emergency.
Apart from accepting such an outrageous legal submission, there were naive observations including an expression of “a diamond-bright, diamond-hard hope” that the fears of the detenus would never come to pass and that care for them was “almost maternal”. The renowned jurist, H M Seervai, wryly noted that even before the SC had handed out these good conduct certificates to the Central and state governments, P Rajan, an engineering college student in Kerala, had been murdered by torture with iron and wooden rollers.
Many years later in 2017, in the right to privacy case (KS Puttaswamy v. Union of India), the Supreme Court overruled ADM Jabalpur. One judge went so far as to say that the ADM Jabalpur case was an aberration in the constitutional jurisprudence of the country and felt that the majority opinion deserved to be buried “ten fathoms deep” with “no chance of resurrection”. Yet, just two years after Puttaswamy, questions have now been raised on whether the Court is reverting to an ADM Jabalpur phase.
The New York Times, in its August 23 edition, reported that more than 2,000 Indian citizens in Kashmir have been detained without authority of law, and without recourse. Many have been unconstitutionally flown out in military aircraft and incarcerated without due process in Agra, Lucknow and Varanasi. Included amongst them are the president of the J&K High Court Bar Association, a leading businessman, an anti-corruption activist and journalists, university professors, Arabic scholars, and even children as young as 14 years.
The NYT reiterated what has been reported in some independent Indian media that the entire Kashmir Valley’s 68 lakh people, and parts of Jammu’s 54 lakh people, have been under “lock-down” for almost three weeks since the midnight of August 5, with all mobile networks and even telephone landlines disabled, complete curfew, and shutdown of schools and colleges.
Days earlier, Shah Faesal, the first Kashmiri to top the IAS examinations, who cut short a distinguished career to form a political party, was detained without charge at Delhi Airport. He was then flown out without transit remand to Srinagar, as he could not be legally detained in Delhi. This was a sequel to the incarceration or house arrest of all mainstream leaders of registered political parties in Kashmir.
Untold human suffering has been visited upon a 1.25 crore populace as a “preventive” measure, and continues with little or no let-up three weeks later. But two different benches of the SC have taken at face value the stand of the government on the need for such a drastic clampdown and suspension of not just civil liberties, but the very right to life and liberty that is guaranteed by Article 21 of the Constitution of India.
Showing complete faith in the words of the Attorney General and the Solicitor General, each of those benches asked the petitioners to wait for some time, as the law officers informed the Court (without giving any details or particulars), that “normalcy” would soon be restored.
It was this same enduring faith in the government’s word that made eminent SC judges accept the word of the government in ADM Jabalpur, that the government would never misuse its powers merely because it had suspended the right to life and liberty during the Emergency.
While these events unfold, a SC-mandated exercise hurtles towards a potentially horrific denouement in Assam. The National Register of Citizens (NRC) process of identifying non-Indian citizens has been directed by the Court to be completed by August 31.
The Court is not oblivious to the fact that nearly 40 lakh persons who have either been born in India, or have lived in the country for several decades, risk being declared stateless because of a deeply flawed process. Section 3(1)(a) of the Citizens Act, 1955 mandates that every person born in India between Republic Day 1950 and June 30, 1987 shall be a citizen of India by birth, but despite this, the Coordinator is excluding from the NRC all persons born in India prior to June 30, 1987 on the ground that one parent of such person is either a “doubtful voter (DV)”, or a “declared foreigner (DF)”, or a “person whose claim for citizenship is pending before a Foreigner’s Tribunal (PFT)”.
Startlingly, after categorically stating in open court on August 9, that there was no question of excluding persons born in India before June 30, 1987 from the NRC, and that applicants and interveners need not address the Court any further on this aspect, the SC in its order of August 13 upheld the Coordinator’s recommendation to exclude the lakhs of persons born in Assam from 1950 to 1987.
And the primary reason given by the Court for this mass exclusion of lakhs of Indian citizens is that “the entire NRC exercise having been done on the aforesaid basis, the same cannot now be reopened.”. In sum, the SC puts administrative convenience above the humanitarian disaster that will be created for lakhs of Indian citizens who may face separation from their families and incarceration in hellish internment camps. All this despite the view expressed by the judges just four days before passing their order that such exclusion would be contrary to the provisions of the Citizenship Act.
On the independence of the judiciary again, the Court has failed to be assertive. The entire basis for the judgment striking down the National Judicial Appointment Commission was that the collegium system is essential to the independence of the judiciary, which is part of the basic structure of the Constitution.
And yet, a collegium recommendation of May 10 for the elevation of a particular judge as the Chief Justice of the Madhya Pradesh High Court remains unimplemented. The case questioning the non-elevation is now to be listed “on such date that Hon’ble the Chief Justice on the administrative side may fix”. The lack of urgency on the judicial side is distressing.
Judicial historians are likely to pay keen attention to this period in the Court’s history. Will this leave a future generation of SC judges as embarrassed as their brethren from the past?
This article first appeared in the print edition on August 28, 2019 under the title ‘The verdict of history’. The writers are senior advocates in the Supreme Court.