2019 - The Year of Majoritarianism

The year before was celebrated as the year of constitutional morality for the array of decisions of constitutional benches upholding the rights of minority groups of our country. To the contrary, the year 2019 has been marred with controversies with the Hon’ble Supreme Court showing signs of lack of independence and reduced regard for constitutionalism.

Cases such as Babri Masjid-Ram Mandir, Sabarimala review, and the curious case Chidambaram’s bail, have all projected a shift from the idea of individuality towards the idea of majoritarianism. The process of the National Register of Citizens (NRC) in Assam which was closely monitored by the Supreme Court has also shown signs of failings.

Even though steps were taken towards making the functioning of the Court transparent, they were belittled by the increased practice of sealed envelopes. There has also been an indiscriminate use of power under Article 142 of the Constitution and the timings of the orders passed in environment-related matters were too late and too sparse.

The most unprecedented event of this year was the allegation of sexual harassment levelled against then Chief Justice of India (CJI) by a former employee of the Court. In an affidavit, addressed to all the judges of the Court, she detailed her constant victimisation at the hands of the then CJI, Justice Gogoi. The CJI called it a challenge to judicial independence and an attack on the institution in the suo motu case registered as In Re, Matter of great public importance touching upon the Independence of Judiciary.

Justice Gogoi was criticised for being part of the initial bench which heard this matter. The matter was referred to an internal committee which found these allegations to be baseless. A committee headed by retired Supreme Court Judge, Justice A.K. Patnaik, was also constituted with the mandate of enquiring into the conspiracy angle of the matter, which has submitted its report to the Court.

In another incident affecting judicial independence, one of the judges of the Supreme Court refused to recluse from the larger bench set up to hear the matters in which he had earlier passed adverse judgment [Indore Development Authority v. Manohar Lal]. It clearly highlighted judicial arrogance and was against the principle that justice should not only be done but should also seem to have been done. During the hearing of the same matter, the same judge was also involved in another controversy where he threatened an arguing counsel with contempt proceedings, for which he later apologised.

Another disappointment of this year was the case where the Supreme Court allowed the review of the Sabarimala judgment [in Kantaru Rajeevaru v Indian Young Lawyers Association] wherein a Constitution Bench of five judges had held the ban on entry of women between the age of 10 to 50 into the Sabarimala temple as unconstitutional.

As per the majority decision, the review was allowed for the purposes of determining the principle of ‘essential religious practices’ which would form the basis for the future cases pending before the Court. Such an order, unfortunately, is beyond the scope of powers of the Courts in a Review Petition, which was, however, justified on the grounds of doing complete justice (Article 142). The only light of hope was the two minority decisions which did not find any merit in the review and directed the authorities to ensure proper and complete implementation of the judgment to ensure rule of law.

The basic principle of jurisprudence of fair trial. i.e. bail is the rule and jail an exception, has been indiscriminately reversed by the Supreme Court in various cases, the most important being the case of P. Chidambaram [P. Chidambaram v. Union of India]. His right to liberty was put at stake and his bail was rejected numerous times by the courts even when no charge sheet had been filed in his case and the investigating agencies had failed to interrogate him in jail even after getting numerous opportunities.

Surprisingly, his name neither appeared in the FIR, nor in the case filed by the Enforcement Directorate under section 3 of the Prevention of Money Laundering Act, 2002. Even in these circumstances, regular bail was granted to him only after 105 days of incarceration. The triple test to be applied in the cases of regular bail is to find out if a person is likely to hinder the trial by fleeing from justice, tampering with evidence, or influencing witnesses; and all the courts disregarded it in this case. However, ironically, the bail was ultimately granted on application of this triple test.

A number of significant steps were taken towards transparency in the working of the courts through various cases. For instance, in the case of Central Public Information Officer, Supreme Court of India V. Subhash Chandra Agarwal, holding disclosure to be a facet of public interest, Supreme Court held that office of CJI is a public authority within the meaning of Right to Information Act. Further, the Court also paved way for transparency in judicial appointments while holding that "there is a vital public interest in disclosing the basis on which those with judicial experience are evaluated for elevation to higher judicial office particularly having regard to merit, integrity and judicial performance. Placing the criteria followed in making judicial appointments in the public domain will fulfil the purpose and mandate of Section 4 of the RTI Act, engender public confidence in the process and provides a safeguard against extraneous considerations entering into the process.”

On the other hand, during this year, the Court also witnessed a momentous increase in the practice of sealed envelopes- a step towards secrecy. Earlier used only for limited purposes - in cases where the investigation is pending and where the rights of parties might get prejudiced- orders for reports in sealed covers became a regular phenomenon this year. It is, undoubtedly, the discretionary power of the Court to decide the manner in which the case is to be conducted, however, it cannot and ought not act in a manner which is prejudicial to fair trial. Such secrecy prevents the parties from knowing the reasons upon which the court's decision is based, thus promoting opacity in its functioning.

The process of National Register of Citizens, which was conducted under the strict scrutiny and direct supervision of the Court [Assam Public Works v Union of India], also proved to be disorganised and violative of human rights principles. Questions have also been raised as the Supreme Court has conducted this process without deciding upon the constitutionality of NRC, which is still pending before a Constitutional Bench.

The year ended with the biggest debacle wherein, through a unanimous judgment, the Apex Court paved the way for construction of temple at the sight where the Babri mosque once existed and which was considered by the Hindus to be the birthplace of Lord Ram [M. Siddiq v Mahant Suresh Das & Ors.].

There were apparent biases in the manner of appreciation of evidence presented by both the sides and the judgment was widely considered to be majoritarian which failed to acknowledge the rights of the minority community. The review filed by the Muslim side to the case was also dismissed by the Court without providing them opportunity of an open and proper hearing.

This year, the Court took strict measures against the State Governments in matters pertaining to environment. However, these measures were not appropriately timed and were too late to be effectively implemented. The State of Maharashtra was put to task by the Court for felling of trees in Aarey forest area in Mumbai [RE: FELLING OF TREES IN AAREY FOREST (MAHARASHTRA)]. In this case, the Court took suo motu action and put stay on the felling of trees for the metro project. This, however, came at a time when most of the forest area had already been cleared.

Another suo motu action was taken by the Court to deal with the issues pertaining to pollution in National Capital Region and the whole of northern India, particularly during the winter months [RE: SEVERE PROBLEM BEING FACED BY THE CITIZENS IN DELHI AND ADJOINING AREAS DUE TO ACUTE AIR POLLUTION]. Suo motu cognisance was also taken of the issue of unsafe drinking water in Delhi. The Court, while explaining the duties of a welfare state of being constitutionally bound to provide clean air and water to all their citizens, directed the State of Delhi, Punjab, Haryana and Uttar Pradesh to take steps to curb the pollution by shifting to cleaner technologies and warned them that failure to do so would result in imposition of compensation. These measures, again, were remedial and even when pollution has become an annual phenomenon, no preventive measures were discussed by the Court well within time.

Amidst these aberrations, there have been few lights of hope where, away from the dominant trend, the Supreme Court has adopted rights-based approach.

The amendments introduced to the SC/ST Act 2018 by the Supreme Court, were partially set aside wherein the Court, while reviewing the judgment, said that all the people belonging to these communities can not be treated as liars. [Union of India v. State of Maharashtra]. In yet another review [Ashok Tanwar v DDA] the Court allowed construction of a permanent structure for Guru Ravidas Temple (a Dalit Guru) in the Tughlaqabad forest area within weeks of ordering its demolition and ordered the authorities to cooperate in the construction of the temple. The order of a judicial probe into the extra-judicial killing of the four accused of the Telangana rape and murder case is also a welcome step from the Court [G.S. Mani v Union of India].

The Supreme Court has, undoubtedly, taken many steps backwards this year and has moved away from the idea of India as it exists in the Constitution. Instead of seeking aspirations from the Constitution, the Court seemed to have been widely influenced by the political atmosphere of the country. Rule of law has given way to rule of majority. This has led to the demise of judicial disciple and independence which was shown by the Court last year and there is now a move towards judicial anarchy, which is ominous for the institution and the country as a whole. The need of the hour is for the Apex Court to act as the sentinel of the rights of the citizenry and to rebuild the diminishing trust which the public reposes in the judiciary.

(The writer is a lawyer and barrister, Supreme Court of India)