Judging the Court

Kanu Agrawal

The higher judiciary is not just an institution for resolving priorities of the elite of a particular inkling. 

A lot is said and written about the Supreme Court while it discharges its function as the final arbiter of disputes in the country but what catches the public eye, is only a fraction of the work that is carried out by the Court. The cases that attract “national” attention and media glare, are few and far in between a plethora of cases decided by the Court. The inflated attention these cases attract, in juxtaposition to other cases, inevitably ends up defining the public discourse surrounding the Court. The limitations of mass media and the inherent selectivity associated with it, leads to an incomplete picture of the higher judiciary and a reductionist understanding of the Court.

The case which attracts media attention also varies as it is a subjective opinion shaded in political and ideological inklings. A “substantial question of law”, which unlocks the doors of the Apex Court, is blind to the nature of a case or the financial stakes involved. Over the years, the Supreme Court has morphed itself into an amphibian ‘constitutional court” cum “court of appeal’, seeking to tiptoe the delicate balance between imparting its duty as the highest constitutional court and being the final court of appeal. This requires compartmentalisation of priorities and division of work within the institution in dealing with issues in rem and disputes in personam. This compartmentalisation can be on the basis of subjective notions of “national importance” or on a utilitarian approach or on the basis of the oldest first principle. Considering that there is no direct answer to this, the judges manning the apex institution, have at different times, adopted various techniques in dealing with this question. The burden this entails is endless and requires the precision of a funambulist.

Selectivity in current times – the stale platitudes of Emergency

This most recent victim of this handicap of selectivity is the discourse surrounding the petitions filed after the nullification of Article 370. The commentariat has frequently invoked the ‘ghosts of Emergency’ in order to draw false parallels with observations/orders which do not adhere to their world-view. There are hysterical opinions making calls to the ‘third pillar of democracy’ or the ‘sentinel on the qui vive’, purportedly abdicating its duty in times which ostensibly match the horrors of the Emergency era. These assertions, apart from being horribly misplaced, are nothing more than stale platitudes that have little place in arguments inside the courtrooms. The beacon of this style of criticism, are the parallels to the ADM Jabalpur case, which was emphatically overruled in the privacy judgment. The ADM Jabalpur judgment, to the chagrin of the Court, is quoted far too often despite an utter lack of data or rationale to compare today’s Court to the Court during the Emergency.

As per settled law, a habeas corpus petition, or the challenge to the validity of any detention, is not maintainable once a jurisdictionally valid order of detention is presented before the Court. This precedent is based on accurate adherence to the rule of law and procedural correctness, wherein a detention order is to be challenged before the correct jurisdictional Court, and not overreach the statutory process. Secondly, the ‘validity’ of detention, in a habeas corpus petition, is to be adjudged on the ‘date of return/reply’ and the Court cannot travel to an anterior point in time to nit-pick a lacuna in the detention order to secure the release of the person. Therefore, if at any point in time before the final hearing of the petition, the State is able to produce a valid order of detention, the habeas corpus would not be maintainable. Simply put, “habeas corpus” means “to have the body presented” and ought to be invoked in cases wherein the corpus is ‘missing’ and requires to be ‘presented’ before the Court. Indeed, over the years the scope of habeas corpus has expanded a bit, but the precedents remain.

In the batch of habeas corpus petitions concerning the Jammu and Kashmir issue, the Court has adhered to neither of these principles. In reality, the Court has travelled outside the scope of these writs, purportedly under Article 142, the provision concerning ‘complete justice’, in order to overcome the law on habeas corpus and pass certain favourable orders. Therefore, rather than an abdicating of responsibility, as has been flavour of the slurs over the Court, the Court has actually exercised extraordinary powers in order to match the situation. This is not to mean that the detention orders are good or bad in law, rather just that habeas corpus may not be the appropriate remedy in the circumstances.

The second batch is concerning the curtailment of movement and telecom services in the Jammu and Kashmir. The said measures have been castigated by the commentariat in view of a purportedly untrammeled expanse of fundamental rights. The Court’s reference to ‘considerations of national security’ has also been criticised as erroneous and misplaced. This criticism, apart from ignoring the facts concerning the history of terrorist violence in the State, its geographical location, the political history/demography, the constant external aggression and skirmishes, ignores the elementary understanding of fundamental rights in the country. It is elementary constitutional law that the rights under Article 19 or Article 21 are not absolute and subject to reasonable restrictions on grounds of “sovereignty and integrity”, “security of the State”, “friendly relations with foreign States”, “public order”, etc. The said exceptions all have a flavour of “national security” which has been invoked by the Court. While the intrusions in personal liberty on grounds of such exceptions cannot be disproportionate, such proportionality analysis considering the factual situation, more often than not, would flow in favour of the executive. Further, the genesis of orders under Section 144 Cr.P.C., which have placed the restrictions, is prevention. The idea of prevention seeks to minimise the possibility of any untoward incident by limiting the situations which may aid the fast spread of information and gathering the persons. The curtailment of mobile internet, in an era where it has become the primary tool for mass communication and can be used to spread misinformation, has become critical. This curtailment, quite evidently, has become a part of Section 144 CrPC orders across the country and not just Jammu and Kashmir and in fact, it has been challenged before the Courts and upheld. Therefore, the temporary restriction of mobile internet becomes an important tool for the effective implementation of the object of Section 144 Cr.P.C. without which, in this supremely interconnected world, the idea of ‘prevention is better than cure’ would become futile.

The Supreme Court has previously held, in the context of preventive detention, that it is necessary to protect individual rights ‘insofar as practicable which are not inconsistent with the security and well-being of the society’. Justice Sabyasachi Mukharji emphasised that procedural safeguards must be construed in a ‘pragmatic commonsense point of view’. The Court remarked that observance of procedural safeguards for the protection of individual liberties is the high duty of public officials ‘but in all circumstances not the highest’ and that ‘the law of self-preservation and protection of the country and national security may claim in certain circumstances higher priority’. The Court invoked the iconic Thomas Jefferson who had set out – “To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means”.

One must also not forget since 1990, more than 41,000 persons have lost their lives in terrorist violence in the State which has been tacitly supported separatists on this side and a rogue neighbour on the other. The State presents a unique problem and probably required a unique solution. No doubt, the fundamental rights of citizens are paramount, but the cascading effect of an adventurous intervention at this stage cannot be ignored. Further, the ideal of self-determination cannot be furthered in ignorance of the obvious secessionism and religious terrorism behind it, and the proponents of such ideals, must not camouflage their attempts in the sacred veils of fundamental rights.

Primary duty of the Court and the judicious allocation of time

What defines the Court is not an isolated moment of genius or the brilliance of a particular judgment or the alacrity with which it disposes of a particular matter, rather what defines it is how it dispenses justice to one in all. Undoubtedly, over the past year, the Apex Court has expanded its capability to dispose of cases while making sure that it is functioning at full strength with up to seventeen different benches. On the days apart from miscellaneous listings, the benches are consistently disposing of “regular” matters pending before the Court since some antiquity. The ‘disposal rate’ of judges is increasing with every generation and with the number of judges being increased, one can expect the Court to regularly hear and dispose of matters concerning common citizens and shed the tag of being a Court for ‘big corporates’, ‘big politicians’ and ‘big NGOs’. If rumours are to be believed, the Court may set up multiple three-judge benches to dispose-off important matters concerning death penalty, taxation, references, etc.

The primary duty of the courts cannot be defined on the basis of a handful number of cases or judgments which pander to the beliefs of a particular class of commentariat, on either side of the ideological divide. The broad priorities of such commentariat and their ideological background often leads to calls of absenteeism or inaction on part of the higher judiciary in the event the Court fails to match such personal priorities with equal enthusiasm and verve. It is important for the discourse surrounding the Court to not be handicapped by the inherent limitations of selectivity. It is important to rise above the individualization of issues and the binary categorisation of judgments in pre-conceived ideological pigeonholes. The Court is not to be judged solely on the basis of what it decides in the Ramjanmbhoomi case or in the challenge to the Article 370 issue but must be judged on how the Court maintains the rule of law in every case when a common citizen approaches its august doors.  The opinions of the people manning the apex institution, not just have an impact on the national discourse but also have a profound impact on the lives of litigants it deals with. The Court cannot be a prisoner of its image in op-eds as its duty travels beyond the confines of popular attention. The Court has a responsibility which mandates it to look beyond the fashionably misplaced allegations of ‘silence’ in alleged times of ‘tyranny’.

The author is a Panel Counsel for Union of India and is part of the team representing the Central Government in the petitions in the Supreme Court concerning detentions and restrictions in Kashmir and abrogation of Article 370. 

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Bar & Bench.