Constitutional experts agree the year 2019 has been a “very troublesome” for the Supreme Court. The public perception that the court did not timely step up to protect citizens’ rights despite opportunities galore has triggered angst.
The year has been quite unlike 2018, which saw a surfeit of judgments, from upholding individual privacy as a fundamental right to decriminalising homosexuality to Aadhaar to women’s right to pray in Sabarimala.
“There has not been any remarkable interventions to protect citizens’ rights. In J&K [restrictions], the court could have intervened more actively. An active Supreme Court always keeps the Executive alert,” former Chief Justice of India K.G. Balakrishnan said.
“He [former CJI Ranjan Gogoi who retired in November] dealt with various issues in a manner that seemed pro-government. One of them is Kashmir, in which he gave very limited attention and passed them on to another Bench… these issues remain undecided to the present day… One part [on the validity of J&K restrictions] has to be written. The other part [on Article 370], we don’t know what it would yield… the Assam NRC was accelerated… So all this has made the people wonder in what kind of cases the Supreme Court would come to the help of civil liberties,” senior advocate Rajeev Dhavan said.
Ayodhya case
Mr. Dhavan, who led the Muslim parties in the Ayodhya appeals, said the “entire hearing was angular” and resulted in a judgment “which accords with what the government wants.” The court permitted the construction of a temple on the land where Babri Masjid was demolished by kar sevaks in 1992. Review pleas against the November 9 judgment were dismissed in chambers.
‘A dark chapter’
Supreme Court Bar Association president and senior advocate Dushyant Dave termed 2019 a “very dark chapter”. He referred to the sexual harassment complaint against Justice Gogoi and the special hearing held in connection with it in which the judge himself presided over.
Emeritus Professor of Law Upendra Baxi agreed there is angst against the court, though all of it may not be justified.
He, however, said the reference of the Sabarimala issue to a seven-judge Bench was “bizarre” and a “disservice to the Constitution.” Mr. Baxi, referring to a recent lecture he gave, said the Chief Justice and the Supreme Court cannot “stay” a review and leave it to a future Bench to dispose it of by ruling on the wider aspects of adjudicatory policy. Again, the apex court cannot entertain diverse writ petitions on a matter already disposed of by a competent Bench. The minority decision of Justices Rohinton Nariman and D.Y. Chandrachud on the Review Bench had held that the September 28, 2018 judgment allowing women of menstruating age entry into the temple “is the decision of the Supreme Court and binds everyone.”
Sabarimala worship
Recently, the court advocated “patience” to women of menstruating age fighting for their right to worship at Sabarimala. It acknowledged that law was in their favour but a positive judicial order may spark violence. This is when Article 15 mandates that women should be empowered in the exercise of their rights.
CAA implementation
Again, the court refused to stay the implementation of the Citizenship (Amendment) Act (CAA) of 2019 and pushed the hearing to January 2020. Meanwhile, Chief Justice Bobde orally suggested to the government to publicise the actual objective of the Act. Experts say the apex court is not there to advice the government unless it is sought for under a Presidential Reference. The court is meant to settle constitutional questions.
The court also refused to stay further arrests of anti-CAA protesters or set up a fact-finding committee to probe police action against students of Jamia Milia Islamia and Aligarh Muslim universities.
Chief Justice Bobde’s oral comments about Right to Information Act becoming a source of “paralysis and fear” and the need to lay down guidelines to curb the law’s “abuse” has raised a few eyebrows. The comments, though, were not reflected in the written order.
