In the court of last resort

As Ranjan Gogoi takes over as the new Chief Justice of India, it’s his own warning he must heed

Updated - October 03, 2018 07:10 am IST

Published - October 03, 2018 12:02 am IST

In Lewis Carroll’s Alice in Wonderland, there is a segment called “The Mouse’s Tale”. It features a dialogue between a dog (called Fury) and a mouse. Fury is bored, and to pass the time, proposes taking the mouse to court. His interlocutor is dismissive: “Said the mouse to the cur/ such a trial, dear sir/ with no jury or judge/ would be wasting our breath.” Pat comes the reply: “I’ll be the judge/ I’ll be the jury/ said cunning old Fury/ I’ll try the whole cause / and condemn you to death.”

Carroll’s poem stands as a warning against concentrating power in the hands of a single individual. In January of this year, that was also the warning issued by four judges of the Supreme Court, in an unprecedented press conference. They objected to the manner in which the then Chief Justice of India was using his power to allocate cases to different benches of the Court. One of them, Justice Ranjan Gogoi, takes oath as the new Chief Justice of India today. But a look at his own judicial conduct suggests that it is from Justice Gogoi of the press conference that Chief Justice Gogoi may need to heed that most important of warnings.

The NRC case

Between 2009 and 2012, public interest petitions were filed before the Supreme Court, challenging Section 6A of the Citizenship Act, and also asking for the updating of the National Register of Citizens (NRC) for the State of Assam, in accordance with the Assam Accord. It was argued that this was urgently required to check illegal migration from across the border, and detect and deport non-citizens living in Assam. In the beginning, the court only monitored the government’s progress, asked for status reports, and prodded the administrative authorities.

All that changed, however, in late 2014. First, a bench of the court headed by Justice Gogoi directed the State Coordinator of the NRC to submit in a “sealed cover” a report indicating the “steps and measures” that he was taking to complete his work of updating of NRC. This suggested that the court was no longer content with mere oversight, but would direct both the modalities and the implementation. Then, on December 17, 2014, a two-judge bench of the court — again presided over by Justice Gogoi — referred the constitutional challenge to a larger bench, but also passed a detailed order (authored by Justice R.F. Nariman) setting out a time schedule requiring the draft NRC to be completed by the end of January 2016. The bench of Justices Gogoi and Nariman then virtually took over the task of preparing the NRC.

Three incidents, in particular, highlight this. On February 14, 2017, the NRC Coordinator placed a “power point presentation” before the Court, which set out the “steps involved” (both present and future) in the preparation and upgradation of the NRC. The court did not make this public. Subsequently, however, it was reported that the court had approved an entirely new method of ascertaining citizenship, known as the “Family Tree Verification”, on the basis of a behind-closed-door power-point presentation made to it by the State Coordinator. In July, the State Coordinator stated that on the basis of the Family Tree Method, 65,694 cases had been “discovered to be false”. But as it was also reported, for instance not only did people from the hinterlands have little awareness about this method, but putting together a family tree (in the unique sense in which it is being used in this case) was a big challenge especially for women. None of this was taken into account by the Court.

Second, it became increasingly clear that the time schedule was unrealistic. Extensions were requested, which the court granted grudgingly. On November 30, 2017 — with the deadline a month away — the Attorney-General requested a further extension. It was submitted to the court that more than 75 lakh unverified claims would remain even after the deadline had expired. The court refused an extension, and ordered that a “partial” NRC be published on December 31, with the remainder published later. The Attorney-General protested, arguing that this might raise a law and order problem, as a large number of people would believe they had been excluded from the list. The court brushed aside this objection.

And lastly, on the publication of the final draft NRC at the end of July 2018, around 4 million people had been left out. Now the State Coordinator submitted to the court the “modalities” for the process of filing objections, including a new list of 10 documents that could be relied upon, and leaving out five base documents. The court refused to make the Coordinator’s reports public. It even refused to share them with the Union of India, citing “sensitivity”, despite repeated requests by the Attorney-General. It then set a timeline of 60 days to process the objections of the 4 million left-out individuals.

Checks and balances

The PIL-era Supreme Court has been praised for prodding inefficient governments into action, and stepping in to fill legislative and executive vacuum. However, there are times when silence and slow time are more desirable than speed. Once you have deprived an individual of her citizenship, you have deprived her of that most basic thing – the right to have rights. That is not something to be done in a tearing hurry.

There is a deeper problem as well. Depriving an individual of her citizenship is a very serious matter. And for this reason, our Constitution envisages a detailed system of checks-and-balances before deprivation of rights can happen. First, Parliament must pass a law. Next, the executive – which is best acquainted with the facts and circumstances on the ground – must implement it. And finally, courts review legislative and executive action for constitutional compliance.

The NRC court has elided the second and third levels. It has become an “executive court” – implementing the NRC updating, and reviewing its own implementation. And it has done so in secrecy, through a jurisprudence of “sealed covers” and “confidential reports”, where even the government is not kept in the loop (let alone affected parties).

Not only is the court – as a matter of expertise – not suited to doing this, but also, it deprives the individual of a vital, constitutional remedy. Where is the individual to go if she wants to challenge the contents of the reports filed in sealed cover? And which body can she approach to ask that the content of the “confidential reports” – that may ultimately subject her to deportation – be made public and subject to challenge? An exercise in which the court decides – in secret consultation with the State Coordinator – makes a mockery of both open justice, and judicial review. The executive court has set itself up as the first and final tribunal, without appeal or recourse.

Dreams and nightmares

Towards the end of Alice in Wonderland, Alice is herself caught up in a farcical show trial, overseen by the Queen of Hearts, whose signature line is “Off with their heads!” However, it turns out that Alice has been dreaming all along; and she escapes with her head by waking up from the dream.

But there would be no awakening for Deben Barman, a seventy-year old man, who hanged himself after the names of his children and grandchildren did not feature in the draft NRC. It was not just a dream for Abola Roy, who killed his wife and then hanged himself, after she was notified a “doubtful voter” in the NRC. Judicial orders, unlike children’s novels, have consequences.

It is consequences like these that make Carroll’s warning about unaccountable power so relevant to the judicial role. The constitutional court of the largest democracy in the world must not resemble the court of the Queen of Hearts. As the Chief Justice of India, Justice Gogoi has the power — and the responsibility — to ensure that.

Gautam Bhatia is a Delhi-based lawyer

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