Today marks the sixth birthday of the Indian Constitutional Law and Philosophy Blog. As always, I remain deeply grateful to all our readers, commentators, and guest-writers, commentators. Thank you for contributing towards a living, public culture of constitutionalism.
Historically, on the blog’s birthday, I have highlighted a particular aspect of the judiciary that has stood out in the previous year: examples include the office of the Chief Justice, access to justice, and legal scholarship around the courts. This, however, has been a somewhat extraordinary year, and this blog post will depart from the convention.
The role of the judiciary as the guardian of fundamental rights, standing between the individual and the State, has always been crucial to the functioning of democracy. To those of us engaged with constitutional law, there are times when we feel that the Court has performed this role well, and times when it has not. On this, disagreement is both inevitable, and necessary. Yet, however much we disagree with a judgment, we also recognise that the authority to judge remains vested in the Court, as much as it remains our prerogative to criticise how the Court chooses to exercise that judgment.
But in the last year, we have seen something else. We have seen cases where the issue is not whether the Court correctly exercised judgment in a contest between the individual and the State, but where the Court itself became an aggressor against fundamental rights. Against that aggression, as we have also seen, there is neither recourse nor appeal. And when that happens, it is long past time to take a step back, and to take a long, hard look at the path we are on, and to ask where it will take us.
But above all else, it is important, in the aftermath, to oppose the normalisation of events such as these, to ensure that they are not glossed over or buried, and to insist that even when the Supreme Court does it, it is – and always will remain – unacceptable. That is the task of this post.
The first event: on 19th April 2019, a former employee of the Supreme Court alleged that the Chief Justice had sexually harassed her. What happened next is well-documented. The Chief Justice constituted a three-judge bench to hear the case against himself, placed himself on it, heard the case against himself – but the judicial order did not record his presence on the bench. High law officers questioned the complainant’s motives, and alleged conspiracies. A second bench was constituted. It also muttered darkly about conspiracies, and then passed an order asking a retired Supreme Court judge to investigate said conspiracies. Meanwhile, three other Supreme Court judges constituted themselves into an “In-House Committee”, one of whom was immediately required to recuse himself when the complainant pointed out that he had already made a public statement expressing support for the accused. That judge was replaced. The In-House Committee then began its proceedings. The complainant – according to her testimony – was told that it was an “informal committee” that was not required to follow legal procedures or best practices when it came to sexual harassment complaints. Among other things, the proceedings were not video-graphed, she was not provided with copies of her testimony, and not allowed access to a lawyer. At this point, she withdrew from the proceedings, and the Committee swiftly proceeded to grant a “clean chit” to the accused. There the matter was buried, and there it still lies buried.
In this farcical process, no fewer than eight judges of the Supreme Court were involved at various points. The sexual harassment case, then, was an institutional failure. As an institution, the Court undermined every last principle that has been struggled for and fought over interminable years: attacking the complainant’s integrity, alleging conspiracy, pronouncing the accused innocent at the start, exacerbating power imbalances rather than mitigating them, and throwing procedural fairness into the waste-bin. And at the heart of all this, of course, was an individual: the complainant, whose treatment should shame all of us who claim to care for and speak about human rights.
No apology will suffice, but it must be made – we are sorry; and in an effort to contribute to the struggle of memory against forgetting, this blog will continue – as it has so far – to preface posts about the Supreme Court with a reminder of this institutional injustice, until structures are put in place to ensure it does not happen again.
The second event is a continuing one. It is about those women, men, and children whose lives have been damaged, broken, and in some cases destroyed, by the National Register of Citizens [“NRC”]. The NRC process took the form it has on the back of a 2014 judgment of the Chief Justice and Rohinton Nariman J., where the highest Court in the land saw no problem in endorsing phrases such as “invasion of a vast horde of land-hungry immigrants” and “the vultures will be gathered together” to make an evidence-free case for taking the NRC process out of the hands of an apparently recalcitrant government, and accelerating it under the aegis of the Court itself. What followed included opaque and secretive proceedings to determine methods of identification – methods that further disadvantaged the most vulnerable – and a brutal set of deadlines, imposed by the Court in the teeth of protests by the government, of all things, for an immensely complex process that risked (and as we now know, has resulted in) thousands of incorrect exclusions. Once again, these decisions were taken without oversight or check, because they were being taken by the Supreme Court itself (often behind closed doors), the very entity that was supposed to preserve the rule of law from governmental overreach.
All this had human consequences. These consequences were measured by death, where even one death is too many: Noor Neher Begum (14), Jaynal Ali (41), Rahim Ali (37), Ambar Ali (59), Kulsum Begum, Amar Majumder, and Ashraf Ali (88) are just some of the individuals who were driven to take their own lives, reportedly due to exclusions from the NRC. As for the rest, we probably cannot remember their names.
And when we reach a situation where human beings refuse to be rescued from their flooded homes until they’ve managed to salvage their NRC documents – risking life and limb in the process – we probably need to ask whether the Supreme Court has dismissed humanity in limine (and with costs).
None of this, it needs to be stressed, is normal: immigrant-baiting rhetoric from a constitutional court is not normal; loose, evidence-free statements about migration in a courtroom are not normal; opaquely devising methods of identification and then imposing them – along with deadlines – upon millions of citizens by judicial firman is not normal; and becoming an aggressor against rights rather than its protector is far from normal.
But that is where we are, and that is where the Court is. There perhaps remains nothing else but to acknowledge our own complicity, to try and remember the names, and to wonder, along with Adorno, about the “shame of still having air to breathe, in hell.”