• Lost in Space: Finding the voice of the judiciary in the CAA Narrative

    Raghav Mendirata

    January 6, 2020

    When courtrooms that generally echo with “my lord” start echoing with chants of “shame-shame”, the Institution must take a step back and take stock of how it got here and where it is headed. This article deals with the judiciary’s response (or the lack of it) to the alleged human rights abuses in the wake of protests against the Citizenship (Amendment) Act, 2019 (“CAA”).

    The Supreme Court’s silence and its symbolism

    The wisdom and motive behind the CAA aside, the Supreme Court’s (“SC”) convenient yet conspicuous silence to allegations of police excesses raises grave questions on its moral authority as guardian of the Constitution. One day after the Parliament passed the CAA, more than 50 petitions were filed in the SC challenging the Constitutional validity of the Act. The petitioners ranged from former members of the Indian Administrative Services, human rights activists, opposition leaders, and even the Asom Gana Parishad

    – an ally of the BJP in Assam. The breadth of the petitioners and the promptness of the petitions show how people still perceive the SC as their first and most potent resort. Yet, recent developments make you wonder whether the judiciary will continue to be the most trusted resort when it comes to allegations against the state.

    On December 16, Chief Justice Bobde remarked in Court that the SC would hear matters related to police atrocities against students at Aligarh Muslim University and Jamia Milia Islamia University but rioting must stop for it to do so. Thus, it made the hearing of a fundamental right petition ‘conditional’ on students surrendering another fundamental right – that of assembly. By doing so, at best, it disregarded its own hallowed judgments on freedom of speech, the importance of dissent in a democracy and the right to protest. At worst, it violated the basic principle of natural justice, which requires the court to presume innocence unless proven guilty. It rejected petitioners’ demand of a Court-monitored probe into police atrocities and directed them to approach High Courts (“HCs”) with their prayers. By passing the buck to HCs at a time when it had past precedent and moral responsibility to intervene in matters of human rights abuses, the SC gave rise to serious concerns about it fulfilling its Constitutional role in our democracy. One may argue that the SC directed petitioners to approach HCs since it sincerely believed that HCs might be in a better position to monitor ground developments. However, it is hard to deny that by looking the other way, it shrugged the moral responsibility of examining the alleged violation of our fundamental rights. It also sent a larger message to the society that the Supreme Court in its current composition may just be a silent observer in times of nationwide social turmoil.

    Judging the judiciary on the cornerstone of fairness and reasonability

    The attitude of the SC is reflective of how the judiciary, barring some Courts, has failed in promising fairness and transparency in judicial recourse. Two days after the Supreme Court directed petitioners to approach High Courts with their prayers, the Delhi High Court on December 19 refused to grant interim protection on preventive detention and medical assistance to injured students. However, what shocked lawyers present in the Courtroom and observers the most was that the bench headed by Chief Justice Patel suggested that the matter be posted to March 4, 2020. On passionate opposition from petitioners, the Court finally posted the matter to February 4, 2020. The Court’s inclination to place the matter in cold storage for three months and put to rest the question of Constitutional rights being violated only a short distance away from its own premises raises damaging questions about the Court’s outlook and its intent. The refusal of the Court to treat the matter as urgent resulted in some lawyers chanting “shame-shame” in the Courtroom. Ironically, the Court showed great urgency in this matter and the following day ordered that a committee be set up to examine the chants heard in the Courtroom the previous day and take action against those found responsible.

    Disregard to fundamental principles of criminal law was also observed at the lowest level of the judiciary. While there were over five reporters trying to ender the Tis Hazari courtroom when Bhim Sena’s Chandra Shekhar Azad’s bail plea was being heard, Metropolitan Magistrate Arjinder Kaur ordered that the bail hearing would be held in-camera, without citing any reasons. This arguably violated the principle of open courts in criminal law as prescribed in Section 327 of the Code of Criminal Procedure, 1973.

    Glimmer of hope

     At the same time, it is fair to point out that few Courts have stepped up in performing their judicial functions in these tumultuous times. The Guwahati High Court ordered the restoration of mobile internet in Assam in the absence of the State demonstrating that there existed any disruption to the life of citizens or a deteriorating law and order situation that prohibited relation of mobile internet services. Similarly, the Madras High Court refused to stop DMK’s political rally against the CAA and innovatively directed drones to videotape the entire rally so it could attribute liability in case of destruction of property. In doing so, the Court gave effect to the Supreme Court’s 2019 decision in Indibility Creative Pvt. Ltd. v. Govt. of West Bengal that held that free speech cannot be gagged under the fear of mob violence. In another encouraging development yesterday, the Allahabad High Court took suo moto cognizance on prolonged internet shutdowns in UP in a state where reports are emerging of systematic and widespread abuse of detainees.

    In the lower judiciary, CMM Mona Tardi (Karkardooma Court, New Delhi) and CMM Arul Verma (Tis Hazari, New Delhi) signed orders at their residence late in the night directing the police to allow detainees to meet their lawyers and seek medical help. By doing so, the judges were dutifully giving effect to the Supreme Court’s direction in DK Basu v. State of West Bengal from two decades ago, the same Supreme Court that is silent today.

    The way ahead

    The anti-CAA movement continues to rage in its fourth week now. Even though the Courts are yet to reach judgments on issues of police excesses, there is hope that the judiciary may step up to now act in a transparent, reasonable, and fair manner. Unlike in the emergency when the judiciary upheld the government’s actions, the judiciary today is dodging, ducking, evading, and adjourning cases. However, a silent spectator with the moral and legal obligation to step in maybe as bad as the aggressor. In these times when grave violations of human rights are being alleged every day, it is up to the judiciary to fulfil its constitutional duty, maintain its democratic significance and uphold its institutional prestige. If the Supreme Court doesn’t raise its voice now, it would make one wonder if the courts are not speaking for themselves or whether they are holding their silence for somebody else?

    “In the end, we will remember not the words of our enemies, but the silence of our friends” – Martin Luther King, Jr.

    Note 1: The title of this article is inspired by Justice A.P. Shah’s recent opinion piece published in the Indian Express (December 28, 2018) titled ‘In CAA narrative, finding the judiciary’s lost voice’.

    Note 2: The views expressed in this article are those of the author. 

    Image/Banner courtesy: The Free Press Journal


    First published in The Leaflet.

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