“We might not be in a state of war, but we are in a state of emergency, unprecedented for generations” – Justice AP Shah
Justice AP Shah delivered a lecture titled The Supreme Court in Decline: Forgotten Freedoms and Eroded Rights in the memory of Justice Hosbet Suresh on September 18, at 6 P.M in a Zoom session. Justice Shah is the former Chief Justice of the Delhi and Madras High Courts and has been a former Chairperson of Law Commission of India. The event was chaired by Senior Advocate, Supreme Court of India, Mr. Dushyant Dave. This event was organized for conferring posthumously the Dr. Asghar Ali Engineer Lifetime Achievement Award upon Justice Suresh.
This event was organized by Citizens for Justice and Peace (CJP) in association with Bohra Youth Association Sansthan, Central Board of Dawoodi Bohra Community, Centre for Study of Society and Secularism, Institute for Islamic Studies and Majlis Law Centre.
In his lecture, Justice Shah honoured the legacy of Justice Suresh while addressing the many pertinent issues that the judiciary is plagued with currently.
Firstly, speaking about the award being given to Justice Suresh, he said both Dr. Asghar Ali Engineer and Justice Suresh were activists in their own right. While Dr. Engineer fought for change in the Dawoodi Bohra community, Justice Suresh made some “path-breaking contributions to the human rights space” and that both their voices were the conscience of the nation. “Wherever there were instances or occasions of human rights violations, Justice Suresh’s wisdom, presence and support always made an appearance,” he said.
Supreme Court in all its glory
Justice Shah began his lecture by speaking about the apex court’s past. He regarded the Kesavananda Bharti case as a shining example of what the Court is capable of and said that the 13-judge constitution bench exhibited statesmanship through this judgment whereby the basic structure doctrine was laid down and judicial custody of the Constitution was reclaimed.
He said that initially the court played a passive role but over time realised its role in the governance of the nation.
The “invention” of the public interest litigation marked the beginning of what has been termed the “socialist judicial” era, where the Court’s activist role came into prominence. In the late 1990s, it expanded its scope into relatively less-explored territories, such as environmental protection, using its powers to tackle important questions in that arena,” he said. According to Justice Shah, the court entered the domain of the executive in the PIL era.
He stated that after the ADM Jabalpur case, the court was viewed as having gone astray and a few years after the case were doggedly spent in restoring some respectability to the institution and in the 1980s and 1990s its reputation was briefly reversed. “We seem to have regressed once again, and desperately need a wake up call in order to avoid another Emergency-like disaster,” he said, throwing caution to the wind.
An unaccountable executive
He then went on to comment on the loss of accountability of the executive. “In India today, every institution, mechanism or tool that is designed to hold the executive accountable, is being systematically destroyed. This destruction began in 2014 when the BJP government came into power… What we are witnessing today is a force in action strategically intending to render the Indian democratic state practically comatose, with all the power entrusted with the executive,” he stated.
He commented on the cancellation of the question hour in the on-going monsoon session of the Parliament and said that the Parliament has been debilitated but other entities such as Lokpal, National Human Rights Commission, Election Commission of India and Information Commission have failed to keep a check on the executive. Those who do raise questions, such as the civil society, unbiased journalism and students are being stifled and strangled in many ways.
The decline of the judiciary
“With Parliament already so weakened, the Supreme Court would have been the next best space to discuss the Kashmir trifurcation, the constitutional validity of the Citizenship Amendment Act, suppression and criminalisation of protests against this law, misuse of draconian laws like sedition and the Unlawful Activities Prevention Act, electoral bonds, etc.,” Justice Shah said while pointing towards the role that the judiciary could have played.
“The Supreme Court’s descent was not fortuitous or coincidental, but was part of a larger, deliberately-crafted strategy on the part of the executive to seize control of the arms of the state, in ways that would benefit its own political agenda,” he stated while pointing out how the court’s decline coincided with the advent of the BJP at the Centre.
He alleged that the appointments of new judges and transfers of existing judges across high courts are many-a-times orchestrated by the Law Ministry. He noted that some judgements did demonstrate self-expression of the court such as right to privacy judgement in Puttaswamy case of the striking down of section 66A of the Information Technology Act in the Shreya Singhal case, as well as decriminalisation of homosexualiity, or recognising transgender rights because the executive was not at all concerned with these issues and hence the court was at liberty. “But wherever the executive is an actively interested party, and wants to undermine the rights of the people – usually in order to further its own realpolitik agenda – you will find that the Court is being pushed to the wall,” he pointed out.
He also made a comment on the contempt case against Prashant Bhushan wherein he was fined Re. 1. “The Court let off Mr Bhushan with a fine of one rupee for the contempt case against him over two tweets, but not without chastising his conduct. In the entire proceedings, one thing was clear: the Court came across as an intolerant institution,” Justice Shah commented.
He said that the court had failed to perform as a counter-majoritarian court as it failed to protect the interests of minorities.
“A democracy derives its legitimacy from representing the will of the majority. But this legitimacy comes at a cost, which is invariably borne by minority groups, and especially those that are unpopular or victims of deep prejudice and who cannot influence the legislature in any way. This power to protect minorities from the tyranny of the majority is the basis of judicial review powers that allow Courts to strike down laws for violating the Constitution.”
Justice Shah criticised the court for aligning with the majoritarian view and said that this was demonstrated in the Sabarimala review and the Ayodhya judgement. He said that while the 2018 Sabarimala judgement allowed entry of women in the temple, the review has left the rule of law in limbo as the government is able to ignore the judgment with impunity, even if there is no stay on the 2018 judgement.
About the Ayodhya judgment he said that it defied the rule of equity that one must approach the court with clean hands when it decided the case “anonymously and unanimously” in favour of the party that was the wrongdoer. He said that even though the criminal trial continues, “in the larger scheme of things, I am doubtful if any meaningful result will emerge”.
Failure to commit to the Constitution
Justice Shah also commented on how the Court failed to address the migrant crisis while it had “time for a billion-dollar Indian cricket administration, or the grievances of a high-profile journalist, but studiously ignored the real plight of millions of migrants, who do not have either the money or the profile to compete for precious judicial time with other litigants.”
Erosion of rights
Justice Shah also spoke about the repression of right to protest and freedom of speech. He said that the government was silencing the protestors while the court has avoided taking up the cases challenging the Citizenship Amendment Act and was being a silent spectator. He also commented on how in the Delhi riots, individuals are randomly being charged with criminal offences of rioting, unlawful assembly, criminal conspiracy, sedition in conjunction with the (newly interpreted) Unlawful Activities Prevention Act (UAPA).
“Contrast this treatment of civilians with that of leading politicians of the ruling BJP who have publicly delivered inciteful speeches. Shockingly, no punitive action was taken against them. Instead, the one judge who showed some inclination to take action was conveniently transferred.”
He pointed towards the investigations in the Delhi riots being unfair as they are mostly based on disclosures and how the Delhi Police has been accused of being partisan and politically motivated. He blamed the state of affairs on a weak judiciary.
“Had the Supreme Court not remained a mute spectator, and had it intervened more proactively, all this would arguably not have happened. Instead, the Supreme Court conveniently declined to intervene, showing no urgency in wanting to deal with these problems. For weeks, the matters involving many of these issues (for example, the Delhi riots) kept getting adjourned. Even where matters were heard and decided, when they were appealed, there was judicial silence.”
He also cited a case which has made it virtually impossible for people accused under UAPA to get bail. in NIA vs. Zahoor Watali, Justice Khanwilkar and Justice Rastogi decided that courts must presume every allegation made in the First Information Report to be correct and put the burden on the accused to disprove the allegations thus excluding the question of admissibility of evidence at the stage of bail. “With such high barriers of proof, it is now impossible for an accused to obtain bail, and is in fact a convenient tool to put a person behind bars indefinitely. It is nothing short of a nightmare come true for arrestees,” he said.
Bhima Koregaon case
Justice Shah said, “abuse of the UAPA and constant rejection of bail applications of accused as a means of silencing opposing voices can be seen most in the Bhima Koregaon cases, where mere thought has been elevated to a crime.” He pointed to the pattern followed in the arrests, “social activists, academicians, public intellectuals, who have worked in certain parts of the country are first accused of Maoist conspiracies, then with charges of misguiding Dalits, and then under the UAPA”.
Abdication of Justice and the Kashmir issue
Justice Shah said that the court failed to apply the principles laid out in the Anuradha Bhasin case while deciding legality of the communication shutdown in Kashmir. The court, in May 2020, instead asked the executive to form a special committee and review the situation to see whether 4G internet can be restored in the UT.
“This is clearly a case of misguided, and surely, constitutionally unacceptable, delegation: the executive has been asked to conduct a review of its own actions, when in fact the judiciary should have been conducting a judicial review of executive action.”
Threat to independence of Judiciary
Justice Shah, quite blatantly pointed out how competent judges were related to adjudicating private disputes and questioned the independence of the judiciary while attributing it to the executive.
“The combination of opaque systems like the “master of the roster”, and a certain kind of Chief Justice of India, and a handful of “reliable” judges, is sufficient to destroy all that is considered precious by an independent judiciary”
The death of democracy
Justice Shah referred to a book titled, How Democracies Die whereby authors Steven Levitsky and Daniel Ziblatt, write of how “most democratic breakdowns have been caused not by generals and soldiers but by elected governments”.
He said that the judiciary was the institution that had the capacity to turn the tide but “it seems to have lost its way”.
“There was a period in history, during the Emergency, as well, when the Supreme Court failed the nation, but it realised its follies and returned to its natural path in course of time. Now, too, we have many judges and exemplary lawyers in practice who are sincere and committed to constitutionalism and to the rule of law. I expect they will rise to the occasion. The occasion is now.”
He concluded with a quote by Jawaharlal Nehru who had said in the Constituent Assembly that we need judges who can “stand up against the executive government and whoever might come in their way” and Justice Shah left us with some words of hope, “I am hopeful that we will once again be able to see judges like these thrive in India.”
The complete lecture may be read here: