In the new year, the judiciary needs to redefine its role in a democracy and it shouldn’t be the part that it has chosen to play in 2020
This was a unique year in many different ways and is bound to be remembered as one of the most eventful ones in living memory. However challenging it might have been for Governments, world leaders and the common man, for the Indian judiciary, 2020 was a year of major challenges and lost opportunities. It was unusual for the judiciary and particularly for the apex court, because the challenges posed before it were unprecedented and the expectations from it were extraordinarily high. This was a year of major constitutional changes, the consequences of which were exacerbated by the Coronavirus pandemic and the challenges posed by it. For the judiciary, particularly the Supreme Court of India, this could have been an opportunity that it might have wanted to grab on to and send out a strong message that it functions independently.
It should have sent out the message that it is not an executive court: An image that has been associated with it only recently. However, at the end of the year, the results are starkly different and suffice it to say that they don’t seem to be in favour of the top court.
At the end of last year, the Centre had brought in the Citizenship Amendment Act (CAA). The challenge to the constitutionality of the CAA and its supposedly deadly combination with the National Register of Citizens (NRC) and later the National Population Register (NPR) was brought before the Supreme Court.
The CAA is arguably one of the most controversial pieces of legislation in the recent past. The Act amends the Citizenship Act of 1955 and allows Indian citizenship for Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who have fled from the neighbouring Muslim majority countries of Pakistan, Bangladesh and Afghanistan due to religious persecution or fear of religious persecution. This is all well and good and a helpful move for the people fleeing persecution. However, the Act perpetuates the exclusion of many who have already sought and continue to take shelter in this country.
Reports have shown that State Governments in several parts of the country have started constructing detention centres for those who will now become illegal immigrants in the country they have considered to be their motherland and have contributed to as well. Those who have been a witness and part of its growth and development story.
In a democracy, when governments turn majoritarian the only option left before the people is to either protest or seek a remedy before the courts. There were widespread protests against the CAA across the country. The Shaheen Bagh protest in the Capital had acquired international fame because of its relentless effort to start a dialogue with the State. The State, on the other hand, had continuously termed the protest and the protesters “anti-national.”
In extreme distress, several petitioners approached the court under Article 32 of the Constitution of India challenging the constitutionality of the CAA and the NRC. The respondents, in another petition, also approached the court challenging the right to protest of the protestors at Shaheen Bagh. In the Amit Sahni vs. Commissioner of Police case, it was argued that the protestors must not be allowed to protest at public places for an indefinite period because such demonstrations cause extreme inconvenience to the public at large and would, therefore, fall within the ambit of the restrictions within Article 19(2). So, at this point, there were two petitions tabled before the court: One on the constitutionality of the CAA and the second on the protester’s right to protest at public spaces.
The court has until today not heard the CAA petition, whereas the judgment in the second petition has already been delivered, wherein the court has held that public places cannot be occupied for an indefinite period for the purpose of a protest and that the State must provide an alternative spot for the same. This, especially when the Government was arresting protesters from several parts of the country.
Even until this day, members from the ruling party continue to make statements during election rallies with respect to throwing out illegal immigrants from the country and the Supreme Court has still not heard the matter to clear the air of confusion surrounding it. This has led to the ruling party gaining more and more ground electorally while the protest seems to seep down to irrelevancy with every passing day.
Similar is the fate of the petition that is pending before the court against the abrogation of Article 370 that took place on August 5, 2019. There were three kinds of pleas before the court post the abrogation. First were the habeas corpus petitions against the detention of several prominent political leaders in the Valley.
Former Chief Ministers and Union Ministers who have served not just the people of Jammu and Kashmir (J&K) but also the country were locked up and detained for more than a year and many continue to be detained even today. Many habeas corpus petitions are pending before the court and no judgment has been delivered to date. Many of these petitions have become infructuous after the executive branch of the State decided to release the detainees. But the court took no notice of it.
Second were the batch of petitions on media restrictions and communications blackout. To its credit, the court passed a pathbreaking judgment in the Anuradha Bhasin and Ghulam Nabi Azad vs. Union of India case this year, upholding the freedom of speech and expression through the internet. However, the judgment was not followed by the J&K Administration and a contempt petition is pending before the court for over eight months now. The challenge to the constitutionality of abrogation of Article 370 is also pending for more than a year.
The court faced flak also with respect to its selective outrage on the issue of arrest of citizens, social activists, politicians, free thinkers and writers. The stark dichotomy became a matter of contention and citizens went on to criticise the court on every social media platform. Many journalists and social activists are under arrest even today and the court has taken little to no notice of it, citing some technical ground on which the petitioners have failed to establish their case.
The last issue that I would like to briefly touch upon is the Electoral Bond Scheme. The Finance Bill, 2017, introduced electoral bonds, that are interest-free bearer bonds. It is an instrument that is used to donate money to political parties. The parties involved will probably be a donor, a political party and the Reserve Bank of India — which acts as the intermediary. Such a scheme introduced in India is one that is first of its kind in a democracy. Political parties are being funded in a non-transparent way and such a scheme would only add to the wounds of Indian democracy. The scheme was challenged before the court as early as 2018; however, the top court has not heard the matter until today.
The fact that the judiciary was in the news this year for the way it has functioned in the recent past is troubling. Contempt petitions against those criticising its style of functioning were evidence of the fact that the judiciary has narrowed its understanding of the role it is supposed to play in a democracy. Citizens have either ways taken to the streets this year and have protested in solidarity with those who have been at the wrong end of the rope when it comes to the protection of their fundamental rights.
While 2020 was a year of major challenges and lost opportunities, 2021 will be a year of aspirations from the judiciary. Parties before the courts will want to see a different image of the judiciary: One that is more empathetic, strong, a protector of people’s fundamental rights, authoritative and one that doesn’t back down before the executive. Citizens would want their causes to be heard with more alacrity and more concern. In the new year the judiciary needs to redefine its role in a democracy and it cannot be the one that it has chosen to play in 2020.
(The writer is from the National Law University, Visakhapatnam. The views expressed are personal.)