THE great constitutional lawyer, M.K. Nambiar, was deeply influenced by a lecture by Dietrich Conrad, Professor of Heidelberg University, presented at Benares Hindu University. Conrad spoke of questions facing constitutional lawyers in the Weimar republic, a ‘discussion seeming academic at first, but suddenly illustrated by history in a drastic and terrible manner.’ This year, perhaps, one must feel kinship with lawyers in the Weimar republic.

One must start with what the Supreme Court did not do. Constitutional courts are primarily concerned with protecting the fundamental rights guaranteed to people, citizens and others, enshrined in the Constitution, as extended from time to the time. The Indian Supreme Court’s record has been exemplary in principle, if falling short in practice. But its decision to omit to act, on the pleas of habeas corpus emanating after the widespread detentions in Kashmir in the aftermath of the abrogation of the state’s autonomy and democracy, even of minor children, albeit for a few hours as upheld by the Supreme Court, was glaring, at this time in history, particularly given its explicit rejection of ADM Jabalpur jurisprudence. In the Kashmir cases, ADM Jabalpur,¹ was not even discussed.

Habeas corpus, a writ to produce the body, is the most fundamental and ancient of constitutional functions in our system of law. It was an exercise to place limits on the divine power of kings, requiring the sovereign to justify an arrest before a court. In India, the Chief Justice of the Bombay High Court even suspended work and locked the court in protest against the government refusing to enforce a writ of habeas corpus.

What was ignored in the treatment of habeas corpus cases as visa applications to the Union Territory of Jammu and Kashmir, was jurisprudence of the Supreme Court that liberty is the ‘national interest’. What was also forgotten was Lord Atkin’s dictum – ‘every imprisonment is prima facie unlawful, and it is for the person directing the imprisonment to justify his act.’

The history of suppression at the times of national exigencies is not unprecedented. They were limited under emergency legislation in Ireland, but there is no such legislation in India today. The U.S. Supreme Court refused to intervene in the illegal detention of U.S. citizens of Japanese descent during World War II, justifying it on the basis of war. Although it later recanted and apologised for the decision, its jurisprudence on illegal retentions and Guantanamo Bay during the war on terror is not far removed from Korematsu.²

The issue, in essence, then is what happens to fundamental rights during an emergency? Who decides when it is an emergency? Can courts review the declaration of an emergency? The Basic Structure doctrine jurisprudence in Kesavananda Bharati³ made judicial review and effective access to justice part of the basic structure of the Constitution. J. Beg and J. Khanna’s disagreement in ADM Jabalpur was on the nature of liberty, whether it was to be regulated by the government, whose care of its detainees was almost ‘maternal’, or whether ‘the Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the executive.’

The majority, led by J. Beg and J. Chandrachud, chose to defer to the executive in determination of the existence of an emergency, and the state’s response to it. For them, a representative democracy was sufficient to safeguard against the exception. As the Nazi theorist and jurist Carl Schmitt had written, it is ‘the sovereign… who decides the state of the exception.’ Detentions during the emergency were held to be non-justiciable.

 

In 2018, in a lecture for a conference on protection of lawyers in Istanbul, morbidly titled, ‘Living on the dark side of the moon’, I spoke of the legacy of ADM Jabalpur being overturned by Maneka Gandhi v. Union of India,⁴ and then by J. Chandrachud in the privacy (Puttaswamy) judgement.⁵ In Puttaswamy, J. Chandrachud wrote that ‘…when histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been. ADM Jabalpur must be and is accordingly overruled.’

Apparently I spoke too soon. Its doctrines are alive in the minds of lawyers, the government, and worse, judges. The ghost of ADM Jabalpur is, however, alive and kicking. As in Turkey, the use of an exception, declared with the exercise of arbitrary authority, to justify an attack on fundamental rights, normalises the exception as the normal, rather than a short-term exigency. The Supreme Court discussed national security, trusting the government, giving it time, rather than seeking accountability – and reviewing the government’s actions, rather than exercising its ample power to protect fundamental rights. Its recovery from the loss of its institutional credibility will take time.

 

The court also tackled issues of faith, directly or indirectly. In Sabarimala,⁶ the decision to roll back a constitutional bench decision in a review petition was, as Professor Upendra Baxi described it in the Sunanda Bhandare lecture,⁷ an ‘outright betrayal of judicial discipline’ and a deligitimisation of the ‘basic doctrine’. The reasoning for the review decision, to put to a larger bench, when there existed no conflict, was perhaps reflective of the court’s reluctance to insist upon government compliance with its order. As Chief Justice of India, J. Bobde stated in response to a petition seeking enforcement of the court’s own order, the ‘balance of convenience’ tipped towards the antiquity of tradition, and as the practice had endured historically there was no reason to rush into enforcing its own judgment, entirely operative, till a large constitutional bench had decided the issue. The court, in the face of violence on the streets in Kerala, retreated.

 

After ruling that triple talaq was constitutionally wrong, and directing a law to be brought on the subject, and passing a constitutional judgment to the effect that ‘nothing has been shown to us …from any textual or other authorities’ to declare exclusion of menstrual age women to ‘be an essential part of the Hindu religion’, the review judgment backtracks by stating that Article 25 is not carte blanche in competing rights. It then defers the matter to a larger bench, without reference to the arguments of the eloquent dissent, which laments that it is incumbent on the executive to carry out court rulings pursuant to Article 144 of the Constitution.

The review judgment’s majority holds that there is a split in decisions whether essential practices of religion are self-referencing, by the community itself, or to be judged by the court. The former, which would freeze the court’s ability to protect rights of those prejudiced by religious traditions, is derived from a 1954 decision, while the latter is a 1961 decision. It seeks to tie the decision on essential practices of religion with the rights of women to enter Parsi temples and mosques. The dissent, and commentators, declare it a decision without jurisdiction, as the review jurisdiction of the Supreme Court is limited to errors apparent on the face of the record. When courts seek to advance constitutional rights in the face of tradition and actual threats of violence, the balance rarely suggests advancing constitutional rights. Fundamental rights are not subject to balance.

Although the Ayodhya judgement⁸ takes great pains to suggest that it has nohing to do with religion, the Constitution, or politics, and is merely concerned with determining whether a destroyed mosque was on the property of the waqf or the property of ‘Hindus’, as more specifically Ram Lalla. The judgment seems to contravene property law, civil procedure, the Constitution of India, as well as the Supreme Court rules. It is not authored by any judge, and apparent dissents are addendum, which is neither here nor there, and unlikely to pass muster by first year students of law. It is not the conclusion of the judgment that is surprising, and at least I am convinced that the conclusion would have remained the same if the negotiations would not have been hurried, as the litigants from the ‘Muslim’ side were not averse to a temple being built, at least on part of the disputed land, but for the violence its justification would do to the rule of law and the Constitution.

 

The decision also ignores two earlier decisions of the Supreme Court, one in Ismail Faruqui and M. Siddiq. In Faruqui,⁹ the court, while partly upholding the acquisition of the land around the Babri Masjid, refused to adjudicate on the issue of whether there was a Hindu religious structure prior to the construction of a mosque, which the final judgments finds was not the case, thus leading to a differing conclusion in Faruqui. The other held that mosques are not essential for the practice of the Muslim religion, a decision which certainly should be reheard in the context of the Sabarimala review decision, which reopened the question on whether an essential practice is self-referenced or determined objectively.

 

Further, the judgement recited, but ignores, the import of a suit decided in 1886 moved by Hindus to allow construction of a temple where there was a ‘chabutra’. The suit was dismissed on the ground that there was nothing to show that the plaintiff was in possession of the land. Two appeals upheld the decision, and there was no appeal to the Privy Council. At least legally, that should have settled the issue of possession in the 19th century. Of course it didn’t, and perhaps this judgment will also not be the final word on what was essentially a matter that was not justiciable.

The decision, as retired Justice A.K. Ganguly points out, is entirely contradicted by its own reasoning. This is because, like with most pieces of land in the country, no one can trace the title because private property as we know it was introduced only by English law. If anyone was to attempt tracing the ownership of the land that is our home, farm, or otherwise, to the 15th century, we would invariably fail, as land use and grant of taxation rights determined property laws – thus, the Transfer of Property Act came about only in 1882. The judgment ignores this. The judgment also ignores the conclusions of the Waqf Commission on the desecration of the mosque in 1949, which held that state authorities conceded to its desecration and intimidation.

 

The judgment ignores that its order, acting under Article 142 of the Constitution, to establish a trust and build the temple, is contrary to the head-winds of the constitutional guarantee of equality of all religions, unless the government seeks to enter this role for all religions. Article 26 of the Constitution of India ‘gives every religious group a right to establish and maintain institutions for religious and charitable purposes, manage its affairs, properties as per the law.’ This right is only subject to restrictions for public order, morality and health. In light of Article 26 of the Constitution, the order under Article 142 is a shocking breach of the Supreme Court’s primary responsibility, under Article 32, to uphold fundamental rights.

The judgment also ignores the Bommai¹⁰ judgment on ‘secularism’, if one was needed, as it is part of the preamble as well as the ‘basic structure’ of the Constitution. This is enshrined not only in the Constitution, but the fibre of constitutional morality in which judgments must be stitched.

Having read the judgment, one tries to find streams of justification which lead to the conclusion that the ‘Hindus’ whoever they may be, for the Nimrohi Akhara, Hindu Mahasabha, and Ram Lalla would struggle to agree on anything, have a better ‘possessor claim’. One may pause here to note that the statute of limitation claim of Ram Lalla has been accepted by the Supreme Court on the grounds that Ram Lalla is a perpetual minor, and thus never subject to agency that tolls limitation. Even if one was to accept that Hindus were praying at all times within the mosque, surely the judgment could have adverted to whether this constituted an easement of exclusive possession. It must of course be remembered that the Supreme Court records that there were four centuries between the existence of a previous structure, and the building of a mosque. The court finds that ‘Hindus’ were in exclusive possession of the Babri Masjid site, but if one were, just for the sake of argument, accept the court’s reasoning for the ‘Hindus’ possession, it would be at best, joint possession.

 

As of now, the review petitions filed against the Ayodhya judgment have been dismissed without an open hearing. The tenor of the judgment, the speed of its delivery, and the decision to dismiss review judgments in limine would suggest that the Supreme Court sought to mould, or rather distort the law, using ‘peace in the country’ as a guiding factor, by appeasing the majority. In doing so, it has damaged the rule of law, and the law itself. The damage may be exceptional, and one hopes that the efficacy of its reaching for peace is proven right. If not, the cost would have been too high.

If the Supreme Court has been amiss in its primary duty, the upholding of fundamental rights, it has been partly because it has been remiss in upholding the institutional and procedural guarantee of other institutions and processes. From electoral bonds to EVM VVPATs cross-checking, its decisions are prima facie arbitrary. For instance, in the EVM VVPAT case, when the affidavit filed by the Election Commission itself stated the need to check 479 randomly selected EVMs to arrive at 99% accuracy, otherwise it would need the use of 3-4 officers for 5-6 days to declare results, the Election Commission failed to ask two obvious questions: (i) How many officers could it spare to check in the time required as of now, and were these officers available? and (ii) What would be the accuracy of the cross-checking if lesser randomly selected VVPATs were checked?

The court instead decided the matter on the new alternative to evidence, an ‘interaction’ with a Mr. Jain, Deputy Election Commissioner, and announced that cross-checking with five VVPATs per constituency was enough. It also expressed its reluctance to go into the integrity of EVMs ‘at a belated stage.’ The integrity of the voting process is sacrosanct in a representative democracy, and the issue is not whether democracy is being hacked, but whether it can be. Most Indians would balk if such procedures were followed for the checking of 12th class exam board papers.

 

The issue of a lack of evidence has been a recurring problem in the Supreme Court, but one that is only likely to expand. Such interactions have been common in important cases such as the Rafale case, which should never have started in the Supreme Court or indeed any constitutional court, but in a court where evidence could be taken. In the CBI v. CBI¹¹ case, the Supreme Court could have dealt with the matter swiftly by going by the letter of the law and reinstating the Director pending a decision by the High Powered Committee. Instead, it waded into the administrative crises trying to fashion a solution but, as an interim measure, indicated that it would consider each decision of the ‘interim’ CBI Director, which it then failed to do.

The court asked Justice Patnaik to supervise an investigation into the vague and secret allegations against the then Director, but those investigations led to no civil or criminal action against him. However, they were sufficient for the delegatee of the Chief Justice of India in the High Powered Committee to vote with the government. If the allegations were sufficiently grave to warrant a mid-term transfer of an independent investigative agency, they should have led to more stringent action than a cushy sinecure in the government. As it were, a retired judge of the Supreme Court and the Supreme Court itself is woefully under-equipped for the task of fact finding, but continually wades into the exercise, irrespective of the rights of those prejudiced should it get the facts wrong.

 

The last pillar of the federal structure that has suffered multiple blows is that of federalism. Although a Constitutional Bench by a majority¹² had held that the Delhi government’s powers, limited as they were, must be looked at consistent with the ‘sacrosanctity of the democratic structure envisaged in our court.’ The constitutional court upheld the values of democracy, constitutional morality, collective responsibility, federalism, purposive interpretation and pragmatism. It is, however, technical and narrow yielding to centralised power that won the day when the matter was dealt with by the regular bench to whom the specific questions were remanded back so that the questions could be answered, almost negating the jurisprudence of the constitutional bench. The lofty words of the constitutional bench met the rules of business, and rather than the rules being a handmaiden of justice, they became rules for subverting the constitutional court.

A democratic government, supposed to act on the collective will of the people, was stripped off the power to choose its middle to senior level officers by one judge, and of all officers by another. The technical decisions notwithstanding, the spirit of the constitutional bench judgment was entirely negated. The Anti-Corruption Bureau was held to be controlled by the Lt. Governor, as a representative of the central government, but without jurisdiction of anyone but officers of the Delhi government.

The state government was barred from initiating an inquiry under the Commissions of Inquiry Act. The state could pass rules under the Delhi Electricity Regulation Act, 2000, issue notifications under the Stamp Act, and appoint special prosecutors, but if the Lt. Governor disagreed, then the President would decide the issue. Any solace one may find in the dictum ‘rules are rules’, neutrally interpreted, is belied by the Supreme Court order on Director Generals of Police. The order inserts a role of the central UPSC, and sets aside state law, despite the Constitution giving states exclusive powers over the police, all ostensibly for independence of the police. Thus, state laws on appointment of their Director General of Police were overridden without concern for the federal power to enact such laws. Federalism is an important aspect of the republic, but not one that the courts have been defending sufficiently.

One cannot conclude without referring to the recently enacted Citizenship Amendment Act, which seeks to re-introduce a religion denomination on citizenship, as well as a religious criteria of countries from which they may come: Hindus, Sikhs, Christians, Jains, and Parsis fleeing from Islamic Pakistan, Bangladesh and Afghanistan. Its passage by Parliament and signature by the President, without a constitutional reference on the validity of this facially discriminatory act, is cause for despair. When the executive, legislative speaker and independent institutions act with such brazenness against the constitutional ethos, can the Supreme Court bear the entire burden of course correction? We are well and truly in the Second Republic.

 

Footnotes:

1. ADM, Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521: AIR 1976 SC 1207.

2. Korematsu v. United States, 323 U.S. 214.

3. His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerela, (1973) 4 SCC 225: AIR 1973 SC 1461.

4. Maneka Gandhi v. Union of India, (1978) 1 SCC 248: 1978 AIR 597.

5. Justice K. S. Puttaswamy (Retd.) v. Union of India, (2019) 1 SCC 1: 2018 SCC OnLine SC 1642.

6. Kantaru Rajeevaru v. Indian Young Lawyers Association Thr. Its General Secretary amd Others, (2019) SCC OnLine SC 1461.

7. Upendra Baxi, Emeritus Professor of Law, University of Warwick and Delhi delivered a lecture on ‘How to Engender the Basic Structure Doctrine?: The Elusive Future of Women’s Rights as Human Rights’. Last accessed on 18 December 2019.

8. M. Siddiq (D) Thr LRS v. Mahant Suresh Das and Others, (2019) SCC OnLine SC 1440.

9. Dr. M. Ismali Faruqui and Ors v. Union of India, (1994) 6 SCC 360.

10. S. R. Bommai v. Union of India, (1994) 2 SCR 644: AIR 1994 SC 1918.

11. Alok Kumar Verma v. Union of India and Another, (2019) 3 SCC 1: (2019) 2 SCC (Cri) 64.

12. State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501: 2018 SCC OnLine SC 661.