The most powerful court in the world? A protector of fundamental rights? One’s heart sinks. There are scores of shibboleths that need dispelling in India, but foremost among them is the notion that the Supreme Court acts, in the words of its second Chief Justice M. Patanjali Sastri, as a “sentinel on the qui vive”.
Rights in Kashmir
If the court’s handling of the cases concerning the unending suspension of human rights in Jammu and Kashmir should tell us anything it is this: freedom is of dispensable merit. Nothing else can explain the court’s disdain for the writ of habeas corpus, which has now been stripped of all meaning, and the court’s dogged refusal to so much as review the prevailing suspension of liberty in the region, simply because “security matters” are involved. Yet, for some reason, even otherwise sagacious commentators continue to place special faith in the judicial process. They see the condonation of the continuing wrongs inflicted in J&K — including the judges’ failure to account for the practical freezing of the J&K High Court’s functioning — as a mere aberration. But when we probe deeper what we see is a court that has so often in the past been a grave of freedom.
Ordinarily, when we think about the Supreme Court and its record in preserving civil liberties, our collective minds hark back to the dark days of the Indira Gandhi-imposed Emergency. Then, the court’s status as a check on democratically obtained authority reached its nadir, when it ruled in ADM Jabalpur v. Shivkant Shukla that fundamental rights could be validly negated during a period of the Emergency. But this judgment is scarcely an outlier — it is merely an extreme exposition of the court’s default frame of mind.
Throughout history the court has consistently seen individual liberty as an expendable value. Its corpus of judgments is replete with cases where it has allowed the bogey of security to trump freedom. That such a trade-off is neither constitutionally mandated nor rooted in a logic of the rule of law has barely placed any constraints on the court. This has meant an upholding of a plethora of legislation, including The Preventive Detention Act, 1950; The Armed Forces (Special Powers) Act, 1958 or (AFSPA); Maintenance of Internal Security Act, 1971; The Terrorist and Disruptive Activities (Prevention) Act, 1985, or TADA; and The Prevention of Terrorism Act, 2002. Although some of these statutes have since been repealed, each of them allowed, among other things, the political executive of the time to define and cite “security of the state” as a legitimate reason for limiting a citizen’s rights. As Ujjwal Kumar Singh has argued, these judgments have resulted in the exception becoming the norm, and in the creation of a seemingly permanent state of emergency.
The groundwork for this record, however, was laid at the very founding of the Supreme Court. Today, we are prone to offering encomiums to the court’s earliest years, but nowhere is its inherent and deeply felt distrust of fundamental freedoms more apparent than in its first big constitutional verdict.
The year was 1950, and the communist leader A.K. Gopalan, who had been detained without trial, even after Independence, was incarcerated under a freshly minted Preventive Detention Act, a legislation that was passed hot on the heels of the Constitution’s inauguration. Supporting the statute, the state cited Article 22, which provided, among other things, a set of procedural guarantees to persons detained pre-emptively. But what the government failed to see was that the provision was primarily incorporated to ensure that even those persons confined in exigent circumstances were entitled to a set of basic rights.
The article, it ought to have been clear, hardly provided a carte blanche to Parliament permitting it to legislate and allow for preventive detention on arbitrary grounds. Indeed, as M.K. Nambyar, who represented Gopalan in court, argued, “no amount of fine phrasing could disguise the fact that preventive detention without trial is utterly repugnant to the universal conscience of civilized mankind”.
But the court endorsed the law. It saw the Constitution’s provision of a framework for preventive detention as a parliamentary licence. What is more, even more damagingly, the court held that the guarantee of a right to life and personal liberty under Article 21 could be denied so long as there existed a validly enacted piece of legislation. To the majority on the court (which included Justice Sastri), the various freedoms that Article 19(1) guaranteed — such as the rights to freedom of expression, freedom of assembly and the freedom to move freely throughout India — were simply not available to a person detained under a penal law. Therefore, in its belief, the state had no obligation to show the court that a statute providing for preventive detention was otherwise reasonable and grounded in one of the constitutionally stated exceptions. The upshot was catastrophic: the court had effectively held that so long as a law providing for preventive detention conformed to the procedural requirements of Article 22, it could mandate confinement without trial on any arbitrary basis.
This idea, that fundamental rights exist in a silo, has since been overruled in R.C. Cooper’s case (1970). But the court’s ostensible change in attitude has not translated into actual rulings limiting the government’s ability to detain people without reason. Quite to the contrary, the rationale employed in the judgment in Gopalan was applied when the court upheld the Maintenance of Internal Security Act, or MISA, a few years later in Haradhan Saha (1974). The Constitution, the court wrote there, conferred rights under Article 19, but it also “adopted preventive detention to prevent the greater evil of elements imperilling the security, the safety of a State and the welfare of the Nation”.
Gopalan’s logic persisted through the ensuing decades when the court upheld the TADA and the AFSPA, respectively, in Kartar Singh (1994) and in Naga People’s Movement of Human Rights (1997). In the former, a divided bench found little wrong with allowing custodial confessions to be considered admissible as evidence. In the latter, the court granted to the government a warrant to extend and apply the legislation with impunity to any area designated as “disturbed” for any unlimited period the government thought fit.
The ritual burying of Gopalan has, therefore, had little practical consequence. Despite the ostensible change in the law, the court has continued to uphold statutes that treat basic civil liberties as a trifling inconvenience merely because they deal with a special class of offences. As Justice R.M. Sahai noted in his dissenting opinion in Kartar Singh , the court has effectively taken the “law back once again to the days of Gopalan”.
Almost a template
That the Constitution requires pursuance cannot be doubted. The Supreme Court, even in recent times, has intervened to resuscitate some of the document’s most foundational guarantees. Notably, in K.S. Puttaswamy (2017), a nine-judge bench unanimously ruled that a promise of a right to privacy is embedded in Article 21. There, in his concurring opinion, Justice R.F. Nariman affirmed, among others, Justice Fazl Ali’s dissenting opinion in Gopalan , the foresight of which, he held, “simply takes our breath away”. Yet, as we have seen time and again, when the stakes are at their highest the Supreme Court reverts to type, bringing to mind Sir Edward Coke’s aphoristic appeal in the House of Commons for the Petition of Right: “Shall the soldier and the justice sit on one bench, the trumpet will not let the crier speak.”
Suhrith Parthasarathy is an advocate practising at the Madras High Court