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Mainstream, VOL LIV No 11 New Delhi March 5, 2016

Test Time for Judiciary

Wednesday 9 March 2016, by Anil Nauriya

It has been a time of test for the judiciary. When the political system is in a crisis, pressures increase upon the judiciary in the sense that conflicts to which the political system gives rise or is unable to contain assume a juridical form and become subjects for adjudication. The Internal Emergency declared in June 1975 was one such time when the judiciary was resorted to by way of habeas corpus petitions filed on behalf of many who had been “preventively” detained. The High Courts did not come off too badly at the time and it was the Supreme Court which failed to rise to the occasion. In the ADM Jabalpur case the Supreme Court made a literalist reading of the Constitution taking the view that once fundamental rights were suspended during the Emergency, even the right to life could not be enforced through courts.

After the Emergency was over, a juridical remorse took over and that assumed the shape of socially expansive interpretations of fundamental rights and the judicial nursing of public interest litigation intended to bring about justice for classes unable to speak effectively for themselves. This was a tacit recognition that the legal process had hitherto been tilted in favour of the rich and the powerful. This was only one aspect of the judicial activism and assertion that followed. Increasingly, the Courts began to be seen as the citizens’ bulwark against executive high-handedness and even against administrative arbitrariness and lack of official accountability in several matters involving the basic needs of the people.

Another phase in such socially-sensitive adjudication began to be discerned around the time approximately of the late eighties and early nineties when the courts, being quick to pick up the economic liberalisation signals, started back-tracking on many labour rights matters on account of their economic implications. The softness on private businesses was emblemised by a late night hearing that had once been held to grant bail to a business magnate. Yet the post-Emergency juridical expansion in other, mostly non-economic, spheres seemed to have a more permanent character. The Courts seemed willing still to intervene effectively in cases of constitutional and administrative malafides or arbitrariness. In such fields, they did not seem to shy away from taking on the executive where necessary. They brooked no misbehaviour by the increasingly lumpenised lawyers and their associations or by the police. When, in the latter half of 1989, a Chief Judicial Magistrate in Nadiad, Gujarat was assaulted, handcuffed and tied up by the police, the Supreme Court intervened and appointed Mr Justice R.M. Sahai, then a judge of the Allahabad High Court (later of the Supreme Court), to inquire into the incident and submit a report. The Supreme Court invoked its inherent power—to protect subordinate courts from insult and contempt and from unauthorised interference—as well as its power to do complete justice in any matter pending before it. The wrong-doers were appropriately punished.

Did yet another phase in the judiciary’s attitudes come to the fore with the increasingly assertive Hindutva movement? The problem is that the judiciary is often not ideally placed to appreciate what happens when it furnishes by default or otherwise any space to a sectarian force determined to act in disregard of its orders. The allowances that were made in 1992 by the Supreme Court to permit a limited entry into the Babri Masjid area on the basis of assurances given by the then Chief Minister of the concerned State were seized upon to carry out an operation that became a blot on the country’s reputation for secularism. This was bad enough. Three years later, at the end of 1995, while deciding some election petitions from Maharashtra, the Supreme Court went outside the realm of jurisprudence into an exposition and exegesis of Hinduism and Hindutva which was hardly necessary for decision of the election cases and came justifiably under severe criticism at the time.

The controversies that followed the February 2016 events in Jawaharlal Nehru University and Patiala House Courts have been widely discussed. The alleged sedition and other cases that have been registered by the Delhi Police against some students and others will take their course. But the students alone will not be on trial. Along with them the police, the lawyers and, above all, the judiciary will be on test. The police for looking away when a person in their physical custody was assaulted and for tacitly supporting—by their initial inaction and subsequent mild and delayed case registration—those responsible, including the lawyers who brought disgrace to their profession by their criminal conduct.

The most vital test of all has been and continues to be of the judiciary. Can it rise to the occasion or will it crumble and show weakness? As we have noticed above, both tendencies have been evident in the past. But we need go no further back than the events of last month. When the team of lawyers sent by the Supreme Court to the Patiala House Courts last month was itself insulted and abused that was the time for a strong intervention by the country’s most powerful court. And when it was obvious that the police had failed to protect Kanhaiya, a doctoral student in its physical custody, that was the time when it was reasonably expected that the Supreme Court would intervene and extend its protective hand to Kanhaiya by directing grant of bail rather than transfer the papers to the High Court of Delhi. As we know, the Supreme Court has in extraordinary cases granted bail before now. And when a prisoner was beaten up in the nation’s Capital it called for providing immediate relief.

In the event, the matter of this plucky Jawaharlal Nehru University student went to the High Court of Delhi on February 19, 2016 and was caught in a quagmire of legal delays, to be decided only in early March. The Supreme Court, however, had itself in its order of February 19 directed expeditious disposal. The High Court, in its order of March 2, 2016, said little about the treatment that Kanhaiya had been subjected to and instead chose to expound on nationalism and the motherland. Many remarks by the court, including the references to the armed forces were hardly necessary for decision of the simple question whether a person, against whom even the police admitted there was no video evidence, was entitled to bail. [Had not an Indian lawyer told a magistrate in Volksrust, South Africa more than 102 years ago that a person not accused of a capital offence was entitled to get bail for his appearance?] And in granting bail, which it has described as “interim”, the High Court has hemmed it in with remarks and conditions which do not appear to be called for. It is asserted, for instance, that as the President of the JNU Students’ Union, Kanhaiya was expected to be responsible and accountable for any anti-national event organised in the campus. Really? Why not deal with the Vice-Chancellor then? A surety has been required from persons who would exercise “control” over Kanhaiya. Even though the High Court judgement is qualified in the end with the remark that the observations in it will not be construed as an expression of an opinion on the merits of the case, there is much that appears to be superfluous and not quite called for in the judgement. One hopes that it will be dealt with appropriately by the Supreme Court.

The late Mr Justice Mulla of the Allahabad High Court had once in a judgement referred to the police as an organised goonda force. Regardless of any grain of truth the remark might have had, the remark was expunged by the Supreme Court as being irrelevant and not called for in arriving at the decision in the case.

The author is a writer and an advocate of the Supreme Court.