Supreme Court should decide whether it deserves the "constitutional faith" reposed in it, Justice AP Shah [Watch Video]

The Supreme Court should decide whether or not it deserves the "constitutional faith" reposed in it by the people of India and whether it has lived up to their expectations, said former Chief Justice of the Delhi High Court, Justice AP Shah..Justice Shah was speaking at the Fourth LC Jain Memorial Lecture organised by Association of Democratic Rights and the LC Jain family at the India International Centre, New Delhi on February 10..The lecture was chaired by historian Prof Romila Thapar and attended by several legal luminaries including former Supreme Court Judge, Justice Madan B Lokur and the family members of Gandhian activist LC Jain..Speaking on the theme 'Fighting For Freedom: The Supreme Court in the 21st Century', Justice Shah said,."...instead of pointing outwards, I think the Court should be self-reflective, and should ask whether the institution itself is loyal to the spirit of constitutionalism, to this idea of constitutional morality?"Justice AP Shah.In the hour-long lecture delivered to a jam-packed auditorium, Justice Shah traced the approach of the Supreme Court towards protection of rights of the citizens since its inception in 1950 till today..He said, "...in the initial period, the Supreme Court adopted a conservative approach, by reading only the literal text of the Constitution, treating each fundamental right as a separate chapter..the Court essentially ended up working as the protector of the landed gentry, reaching a climactic conclusion with the infamous ADM Jabalpur case, in the aftermath of the Emergency...".Speaking on the post-Emergency era, Justice Shah added,"...After that, the Court switched tack, and began focussing on what we now call “public interest litigation”, where it sought to protect the rights of those who could not otherwise approach the court themselves, or as one judge famously put it, to become “the last resort of the oppressed and the bewildered”..".Coming to contemporary scenario, Justice Shah lauded the Supreme Court for its judgments in the Navtej Singh Johar (decriminalization of homosexulaity), Subash Chandra Agarwal (applicability of RTI to CJI), Justice KS Puttaswamy case (Right to Privacy) and others. .Specifically referring to the RTI case, Justice Shah opined that the outcome was problematic and satisfying at the same time. .He explained,."It was problematic because the majority judgment placed too many caveats and riders to the applicability of the RTI on the judiciary. That said, Justice Chandrachud’s dissenting opinion counterbalanced this majority view, when he said that judges must be accountable to the people they serve, and more importantly, he explicitly wrote that “the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm".”Justice AP Shah.Basis for appointment of judges must be placed in public realm: Justice DY Chandrachud in RTI Act judgment.Justice Shah then added that there were cases where one could not help but doubt whether the Supreme Court was actually able to protect the rights of the citizens at all.."It is disturbing and unfortunate that we should still be asking questions of this kind, but some recent judgements and orders prompt such reflection. These judgments beg us to ask if the sentinel remains on the qui vive after all."Justice AP Shah.In view of the above, Justice Shah spoke at length on issues concerning the Sabrimala review and the reference to a larger Bench. He remarked that it only raised questions about the perceived finality of Supreme Court judgments..Sabarimala Review: The Supreme Court has upended assumptions about its judgments being final, Justice AP Shah [Watch Video].Justice Shah further spoke on the judgment passed in the Ayodhya matter in the context of Rule of Law and equity..Ayodhya Judgment: Why the Supreme Court gave title of the disputed site to Hindus?.Referring to the "unanimous, but anonymous judgment" passed in the matter, Justice Shah said, ."Contrary to judicial practice, the name of the judge who authored the unanimous opinion was absent. Even more peculiar was the 116 page anonymous addendum to the judgment, that sought to reinforce and reiterate the “faith, belief and trust of the Hindus” that the “disputed structure is the holy birthplace of Lord Ram”. The need for this addendum is highly questionable given that the bench had already unanimously decided the case on constitutional principles, and the addendum was not serving the role of a concurring opinion. Instead, the addendum seems to reinforce the supremacy of Hindu theological considerations."Justice AP Shah.Justice Shah thus questioned if the Supreme Court had done "complete justice" in the case and stated that the court had "effectively rewarded the wrongdoer"..The Supreme Court has rewarded someone’s illegal actions, Advocate Ejaz Maqbool on the Ayodhya judgment.Quoting former Home Secretary Madhav Godbole, Justice Shah said that in an ideal situation, the Court should have asked the state and Central governments to "rebuild the mosque"..Justice Shah then proceeded to analyse the orders passed in Kashmir matters. .At the very outset, he remarked, ."Supreme Court’s orders on Kashmir represents a missed opportunity for the Court to come out strongly in favour of fundamental rights, and fulfil its role as the sentinel on the qui vive."Justice AP Shah.Focusing on the internet shutdown case, Justice Shah said that although the order was laudable in many aspects, it did not actually decide the issue..Referring to the orders passed in the PIL against the alleged illegal detention of juveniles, the series of habeas corpus petitions, and other pleas filed in connection with Kashmir, Justice Shah said, ."...despite the urgency of the matter and the increase in the sanctioned strength of the Supreme Court, it has failed to decide these matters expeditiously. Instead it has passed the buck to the High Court, which has reportedly received over 250 habeas corpus appeals since August 5, even though it is functioning with half its sanctioned strength of 17 judges."Justice AP Shah.Justice Shah thus remarked that several orders, including some orders in the Kashmir matter, suggested that the role of the Supreme Court as a counter-majoritarian institution was diminishing..Borrowing from the writings of scholar Gautam Bhatia, Justice Shah said,."...the Court seems to be slowly taking on attributes of the executive itself. It seems to be drifting from a rights’ court to an executive court, as Bhatia points out, behaving in a way that is indistinguishable from the government, often issuing important policy decisions through its judgements, prioritising cases in specific - and sometimes worrisome - ways, and undertaking actions that would ordinarily be considered the domain of the government."Justice AP Shah.Justice Shah also chose to speak on the Assam NRC case. He said,."Inarguably, this was an administrative exercise, which the executive and the bureaucracy ought to have been responsible for. Instead, we had a process that was “overseen” by the Supreme Court, and primarily under Chief Justice Gogoi, although many would argue that the Court “oversaw” it less, and “controlled” it more. As a result of this, we were faced with a situation where any concerns with the NRC became impossible to challenge judicially, for the judiciary itself was conducting the process!"Justice AP Shah.Assam NRC: Children excluded from NRC won't be sent to detention centres for now, AG tells Supreme Court .Justice Shah also shared his thoughts on the practice of "sealed covers", calling it "travesty of the worst order". ."This has happened far too often to be brushed aside as a mere idiosyncrasy of one particular judge, or a bench. It has happened in the NRC case, the Rafale case, the CBI chief’s case, and the electoral bonds case, to name but a few. By shoving documents and facts that otherwise ought to be made public into sealed envelopes, the Court is signalling that it prefers the work ethic of the executive, believing truly that such secrecy is essential to deliver justice."Justice AP Shah.While concluding his lecture, Justice Shah observed that there still was a high degree of “constitutional faith” in India, along with the faith that the courts can be our saviour..He thus urged the Supreme Court to be self-reflective and answer if the institution itself was loyal to the spirit of constitutionalism, to this idea of constitutional morality. . Justice Shah concluded, ."The right answers will lead to the Supreme Court retaining its status as one of the world’s powerful democratic institutions. As an eternal optimist, I believe the Supreme Court of India will recognise the missteps it has taken, and correct course sooner than later."Justice AP Shah.[Watch the video]