Category Archives: Judicial Evasion

The (Continuing) Doctrine of Judicial Evasion in the Aadhaar Case

On this blog, I have argued before that the ongoing Aadhaar litigation provides an example of the Supreme Court’s evolving doctrine of “judicial evasion”: faced with a dispute between individual and State that involves wide-ranging ramifications on civil and constitutional rights, the Court’s response is not to decide it one way or another, but to simply refuse to hear it at all. While legally this keeps the position of the parties at status quo, at the same time, it permits the State to take all steps on the ground to achieve a fait accompli that effectively makes the case academic and infructuous. In other words, by not deciding, the Court is, in effect, deciding in favour of the State, but without the public accountability that comes with the existence of a written, reasoned judgment.

The doctrine of judicial evasion ensured – as I pointed out in my posts about the Aadhaar/PAN litigation – that in the one constitutional challenge to Aadhaar that the Court did hear, the Petitioners had to argue as if they were playing a tennis match with one arm and one leg tied behind their backs. And today’s order – in Shanta Sinha vs Union of India – is another excellent example of how, by applying this doctrine, the Court has fundamentally abdicated its constitutional responsibility to protect the rights of Indian citizens.

Recall – yet again – the background. On 11th August 2015, after the Union of India argued that there was no fundamental right to privacy under the Indian Constitution, the three-judge bench of the Supreme Court referred the challenge to the Aadhaar scheme (at that point, a voluntary, executive scheme) to a larger bench for decision. The Court clarified that, pending the final decision, Aadhaar could not be made mandatory for availing of subsidies or benefits, and it recommended that the case be heard on an urgent basis. A Constitution Bench met in October 2015 to extent the list of subsidies for which Aadhaar could be used; after that, the case has not been heard, despite numerous attempts to “mention” it before the Chief Justice, and have it listed. It has been one year and nine months since the referral order.

In the meantime, the Union of India has gone full steam ahead with Aadhaar. In 2016, it passed an Aadhaar Act, providing statutory sanction to the scheme. Section 7 of the Act authorised the government to make Aadhaar mandatory for subsidies or benefits, which were paid out of the Consolidated Fund. Under the ostensible cover of Section 7, a number of notifications have been passed, making Aadhaar mandatory for a whole range of crucial, life-sustaining benefits: from schoolchildren’s midday meals to compensation for victims of the Bhopal Gas Tragedy.

Before the Supreme Court today, then, the case for the petitioners in Shanta Sinha vs Union of India was simple: seventeen notifications under the authority of S. 7 of the Aadhaar Act, which made Aadhaar mandatory for crucial subsidies and benefits, were illegal, and Section 7 itself was unconstitutional. Moreover, the case was one of utmost urgency: in most of these notifications, the last date for applying was June 30. Given that the Supreme Court was closing for the vacations today, unless some orders were passed, the case would become entirely infructuous. People entirely dependent on these subsidies for their basic survival would have no choice but to enrol for an Aadhaar number, whether they wanted to or not.

To this, the Court’s only response was to decline to hear the case, because the constitutional challenge to the Aadhaar Act was already pending before the Constitution Bench – the same Constitution Bench that had not been set up for a year and nine months, despite every attempt by numerous petitioners to persuade the Chief Justice to do so. Instead, it tagged this challenge to the already pending challenge before that Constitution Bench. Petitioners’ arguments that they would not rely upon the right to privacy – which was the reason why the referral had happened in the first place – had no impact.

Petitioners then requested the Court to at least hear the case on the issue of interim reliefs because – as pointed out above – the entire case would become infructuous by June 30. To this, the Court responded that the Petitioners could only raise the plea of interim reliefs before the Constitution Bench – that same unicorn Constitution Bench that nobody had seen a hoofprint of since August 2015. The Court then said that the Petitioners ought to approach the Chief Justice and mention this – the same Chief Justice who had publicly refused to list the case on a prior mentioning.

Needless to say, there’s going to be no Constitution Bench before June 30. In short, the Supreme Court has effectively decided the validity of seventeen notifications that make Aadhaar mandatory for accessing crucial services in favour of the government without hearing a single argument, not even arguments on an interim stay.

Presumably, judges of the Supreme Court do not live in individual silos. The two-judge bench of Justices Sikri and Bhushan who heard today’s case was surely aware of the non-progress of the Aadhaar case through the Supreme Court over nearly two years. Surely it was aware that there was going to be no listing of anything any time soon. And so, surely these judges knew that by “tagging” this case to the existing challenges before the mythical Constitution Bench, the effect was nothing other than to decide the case in favour of the government.

I have said before that the only proper description of the Supreme Court’s conduct in the Aadhaar case is institutional disingenuousness. In refusing to set up the Constitution Bench to hear Aadhaar, while simultaneously setting up three Constitution Benches in the vacations to hear three other cases (none of which carry the same urgency as this one) and in “tagging” new challenges to the main challenge that is never heard, thereby burying them as well, the Court has effectively ruled in favour of the government on Aadhaar without allowing the petitioners to argue their challenge, and without writing a reasoned judgment that would be subject to public scrutiny.

This, to me, seems nothing less than an abdication of constitutional responsibility through the doctrine of judicial evasion.

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Filed under aadhaar, Access to Justice, Article 21 and the Right to Life, Judicial Evasion, Privacy

Judicial Evasion and the Referral in Delhi vs Union of India

The conflict between the government of Delhi and the central government has been one of the more enduring political stories of the last few years. The conflict stems out of Delhi’s unique status as more-than-a-union-territory-but-not-quite-a-state, defined by Article 239AA of the Constitution. The political controversy, in brief, turns upon a dispute between the elected Delhi government, and the central government, on the location of governing power, and the status of the Lieutenant-Governor (a central government appointee). To put it simplistically, the Delhi government argues that, subject to the specific exceptions carved out in Article 239AA, the L-G’s role is (akin to that of the President) that of a rubber stamp, bound by the “aid and advice” of the Council of Ministers. The central government argues otherwise, advocating a much broader role for the L-G.

After substantial political controversy, with the Delhi government alleging that the L-G was deliberately stymying its functioning at the behest of the central government for political gain, the matter reached the Delhi High Court. The High Court handed down an elaborate judgment siding with the central government. Naturally, the Delhi government appealed.

Proceedings in the Supreme Court

The Supreme Court’s orders can be found by searching for “SLP (Civil) No. 26200/2016”, on the “Daily Orders” page. The first date of hearing was 5th September, 2016, where the matter was posted to an appropriate bench. On 9th September, before a bench of Justices Sikri and Ramana, notice was issued, and the parties were asked to complete the formalities. The case was listed for 15th November. On 15th November, it was adjourned by two weeks. On 28th November, it was adjourned for another week. On 5th December, it was listed for 12th December. On 14th December, the Court directed that a reply be filed to one of the I.A.s, and that the case be listed in the third week of January. It was mentioned before the Chief Justice on 18th January, who directed that it be listed on 31st January before the appropriate bench. On 31st January, it came to Justices Sikri and Agarwal, who began hearing it. It was heard in part, and listed for 2nd February. The Court then heard it on the 2nd of February, on the 8th of February, on the 9th of February, on the 14th of February, and on the 15th of February. On the 15th of February, the Court decided that in view of Article 145(3) of the Constitution, this case raised issues of considerable constitutional importance, and needed to be heard by a bench of five judges. The case was referred accordingly.

The Prospect of Judicial Evasion

From the 5th of September to the 15th of February is more than five months, and it is perhaps unfortunate that it took the Court that long to decide that the case raised substantial questions of constitutional importance. More than that, however, what is important is this: the term of an elected government is five years. The present case has been in the Supreme Court for almost ten percent of that time. The Delhi government’s argument is that the L-G is deliberately not allowing it to function as it should, and to fulfil its electoral promises. Whatever the merits of that argument, it is the definition of a political crisis, and – to an extent – a constitutional crisis. In this context, it’s also important to note that the status quo – that is, the High Court’s judgment – favours the central government. In other words, the more the Supreme Court delays setting up the Constitution Bench, the closer this case gets to becoming infructuous (the next Delhi election is in 2020), and the more an unbalanced status quo – that has serious political ramifications – continues.

It is something akin to what would have happened if the UK Supreme Court had simply sat on the Brexit case, instead of hearing it in December and handing down a judgment in January. Whether it wants to or not, the Court is neck-deep into a political conflict, and as the Constitutional arbiter, its task is to decide that conflict in accordance with the Constitution.

Five months, admittedly, is not too great a delay in the Indian legal system (although, in the context of five-year election terms, it is already a great deal of time lost). However, the closer we get to 2020, the closer this case will get to yet another instance of judicial evasion; like Aadhaar and demonetisation, like Bihar’s alcohol ban, like the denial of a tax exemption to a film on homosexuality, and like the constitutionality of the Central Bureau of Investigation, it will be another case which raises crucial constitutional issues, but is effectively decided without a reasoned judgment by the Supreme Court (all these cases, it needs to be reiterated yet again, involve basic fundamental rights; the Delhi case is as important, because it involves the question of governing power).

So, one can only hope that the Constitution Bench to hear this case will be constituted as soon as possible.

 

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Filed under Judicial Evasion, Uncategorized

Judicial Censorship and Judicial Evasion: The Depressing Story of Jolly LLB 2

In 2013, Jolly LLB, a comedic satire about the Indian legal profession, ran into legal trouble. Two lawyers initiated “public interest litigation” in the Delhi High Court, asking the Court to direct the Film Certification Board to cancel the license that it had granted to the film under the Cinematograph Act. The Court dismissed the PIL, finding nothing of “public interest” in it, and also finding it to be premature, because it had been filed purely on the basis of trailers. An appeal to the Supreme Court was dismissed in limine, Justice Lodha memorably remarking, “if you don’t like it, don’t watch it.”

Four years later, the sequel, Jolly LLB 2, was not so lucky. This time, another petitioner tried his luck in the Bombay High Court, and after a series of proceedings that I shall proceed to describe, succeeded in having the Court direct “cuts” to the film. In between, the filmmakers went to the Supreme Court, which declined to interfere.

What has happened with Jolly LLB 2 over the last two weeks reveals a confluence between two alarming trends that I have highlighted before: judicial censorship (the Court censoring speech without the authority of any law) and judicial evasion (the Court effectively deciding cases without adjudicating them – i.e., without passing reasoned judgments – simply by keeping them hanging).

The Events

On January 20, it was reported that a lawyer had filed a petition before the Aurangabad Bench of the Bombay High Court, arguing that the trailers of the film revealed an “attempt to project the Indian Judiciary and the Indian legal system in a derogatory manner.” The petitioner had a problem with the fact that scenes in the film showed lawyers dancing in the court, and people playing cards, and asked that the word “LLB” be dropped from the the title of the film.

Instead of dismissing this petition at the threshold, the Bombay High Court issued notice on January 27 and asked the filmmakers to reply. On January 30, the Court found that there was a “prima facie” case of contempt of court. It ordered that the petition be converted into a PIL, and constituted a three-member committee (out of which two members were lawyers) to watch the film, and submit their report on Monday (February 6).

Since the film was scheduled to be released on Friday, February 10, the producers moved the Supreme Court on February 3. Before the Supreme Court, it was argued that the Bombay High Court had no jurisdiction to pass the order that it did, because, effectively, it was setting up a parallel censorship mechanism that had no basis in any law. Instead of deciding the jurisdictional question, the Supreme Court reposted the case for hearing on Tuesday, one day after the Bombay High Court-appointed “committee” was to submit its “report”.

On Monday, February 6, the “Committee” submitted its “Report”, recommending the deletion of four scenes from the film. The producers attempted a compromise, promising a partial deletion. The Bombay High Court accepted this compromise, and passed an order requiring deletion and re-certification of the film.

On Tuesday, February 7 (i.e., today morning), the producers appeared before the Supreme Court, and withdrew their petition challenging the Bombay High Court’s order of January 30, while keeping the question of law open.

Judicial Censorship by the Bombay High Court

Let us first consider the Bombay High Court’s actions in finding a prima facie case of “contempt”, and deciding to set up a “Committee” to watch the film. The procedure for the certification of films is contained in the Cinematograph Act of 1952. The Act makes it clear that film certification is to be conducted by a Board of Censors, who are to take their decision in accordance with the freedom of speech provisions in the Constitution, and government-mandated guidelines. If a person is aggrieved by the Board’s refusal to grant a certificate, or to grant a certificate that only allows restricted viewing, she may appeal to an appellate Tribunal (note that the Act only contemplates an appeal in the case a certificate is denied or restricted; it does not contemplate a person appealing in cases where a certificate is granted – for obvious and good reasons).

What role does a Court have in these proceedings? The short answer is: none. The statutory body that decides on the issue of certifying films for public exhibition, and on requiring cuts and modifications, is the Censor Board, with an appeal lying to an Appellate Tribunal (under the Act, the Government also has revisional powers). Under the Cinematograph Act, the Courts have no power to certify, modify, or refuse certification of films.

Of course, this does not mean that the Courts are excluded altogether. Film-makers and producers who believe that the Board – and the Appellate Tribunal – have acted illegally in denying a certificate or requiring cuts, and have violated their right to free speech, can approach the High Court (and, if that fails, the Supreme Court). The Courts can – and have – set aside decisions of the Board and the Tribunal on this basis.

Another way in which the Courts get involved is if, notwithstanding the Censor certificate, there is an allegation that the film has broken the law. To what (limited) extent a censor certificate grants film producers “safe harbour” from prosecution has been long-debated in the Courts, but is not of relevance to this case.

The third way in which the Courts can get involved is if third parties object to the grant of a certificate by the Censor Board, and move the Court against that decision. This is what was famously done in the Phoolan Devi CaseThe grant of an “A” certificate to the film was challenged by members of the Gujjar community before the High Court. The High Court quashed the certificate. The Supreme Court set aside the judgment of the High Court.

One might begin by asking what standing a third person has to challenge the grant of a film certificate by a Tribunal to a film-producer; however, the limitless rules of standing that now exist in Indian Courts have made that question more or less redundant. Let us assume, then, that a third person approaches the Court (as in this case), and argues that the Censor Board misapplied the provisions of the Cinematograph Act and the Guidelines, and wrongly granted the Certificate. In the first instance, it is important to note that, in light of the fact that the Cinematograph Act clearly envisages the Board as the certifying authority, the Court should not lightly substitute its views for those of the Board (a proposition that has been repeatedly upheld); the Court should only intervene when there is a clear illegality in the grant of the certificate. There is, however, a further question: what form should that intervention make? It is here that it becomes crucial to note that in the absence of a law that authorises it to do so, a Court cannot censor speech. As I have pointed out before, under Article 19(2) of the Constitution, speech can only be restricted by a “law” made by the “State”. For the purposes of Article 19(2), it has been held multiple times that the Court is not the State, and its orders are not “law”.

Consequently, in the absence of a law, it is not for the Court to order cuts to a filmAt best, the Court can find that the Censor Board made an error, point out what the error was, and then remand the case back to the Board to decide once more in accordance with law (the Bombay High Court’s 6th February order does ask the Censor Board to re-certify the film, but also makes it clear what the cuts are).

What the Court certainly cannot do is to set up an entirely parallel censorship authority – in this case, a “committee” of three people to watch the film and suggest cuts. No law contemplates that, and since Article 19(1)(a) is abundantly clear on the requirement of a “law” for censoring speech, the Bombay High Court’s setting up of the “committee” was entirely without jurisdiction. It is an instance of what I have called “judicial censorship“, a trend that is growing frighteningly in recent times.

Judicial Evasion by the Supreme Court

Before the Supreme Court, this exact plea – that the Bombay High Court had no jurisdiction to set up a parallel censorship authority – was taken. To this threshold question, the Supreme Court made a truly astonishing remark: it told the film producers to go and raise this objection at the High Court itself. On being informed that the objection had been made only to be rejected, the Supreme Court then said: “the Committee will make its report on Monday. We’ll keep the matter for Tuesday. Come back to us then if you have a problem.”

In other words, when it was argued before the Supreme Court that the Bombay High Court had illegally set a procedure (for censorship) in motion, the Supreme Court’s answer was “let’s wait and see what the outcome of this disputed procedure is, and then you come back to us.” This is patently illogical. The Supreme Court had to decide the question one way or the other: either to uphold the High Court’s jurisdiction in setting up a “committee”, or to set it aside. It elected to do neither.

However, the Supreme Court’s non-action was scarcely neutral. By the time that the “Committee” released its “report” on Monday recommending cuts, the film’s release date was four days away. The producers had a simple choice: contest this, risk a potentially costly delay and a potential defeat at the end of it – or accept the cuts, and ensure that the film was released on time. In view of everything that the Bombay High Court had done until then, and the Supreme Court’s clear disinterest in protecting the free speech rights of the filmmakers and producers, they took the sensible course of action: accepted the cuts, and moved on.

The Supreme Court’s refusal to hear and decide the question of jurisdiction on Friday, therefore, was a case of what I’ve described as judicial evasion. When faced with a crucial constitutional issue, and one that requires a decisive decision one way or another, the Court’s response is to refuse to decide, and to keep the case hanging. In doing so, the Court effectively decides – in favour of the status quo, which more often than not amounts to contracting rights – but also exempts itself from the necessity and responsibility of giving reasons for what would be perceived as a regressive and anti-rights decision. This is precisely what happened in the Jolly LLB 2 case.

Misapplication of Law

Lastly, not only was the Bombay High Court’s decision to set up a “committee” entirely illegal and without jurisdiction, its two orders – on January 30 and February 6 – are patently erroneous. Its initial prima facie finding of “contempt” on the basis of online trailers goes against a range of Supreme Court judgments that make it clear that films have to be seen as a whole (in fact, this was the exact reason that the Delhi High Court dismissed the PIL against Jolly LLB 1). And secondly, the findings of the “Committee” that four scenes did amount to contempt is erroneous on two counts. First, no deference is shown to the findings of the Censor Board. The “Committee” – whose existence has no legal basis –  acts as if it is an entirely fresh censor board, and thus reduces the statutory Board itself to a nullity.

Secondly, it has now been made abundantly clear – both in case law and by a 2006 amendment to the Contempt of Courts Act – that contempt of court is not about protecting the “reputation” of the judiciary, but about ensuring that the course of justice is not interfered with. There is no analysis to show how scenes from a satirical film about the legal profession would have interfered with the course of justice. Is it the (implied) case of the “Committee” and the Court that the “reputation” of the judiciary rests on such fragile foundations that a comic film can end up interfering with the course of justice?

Conclusion

Let us recap what happened to Jolly LLB 2. A film that had been cleared by the Certification Board was nonetheless held by a High-Court appointed “committee”, which was constituted by pure judicial fiat, to be in “contempt of Court”, and required to delete four scenes. This order rested upon no other foundation than the Court telling the film producers, “I am doing this because I can.” The Supreme Court refused to intervene. In other words, through judicial evasion, the Supreme Court enabled the Bombay High Court’s judicial censorship.

And now consider the consequences: this entire incident will give a fillip to persons with “hurt feelings” to file petitions and PILs against films that have been granted certificates by the Censor Board. As long as a petitioner is lucky enough to find judges such as those of the Bombay High Court who agree with him, the film will have to go through a fresh round of reviewing and censoring. And the Supreme Court will not interfere. True, in this case, the “question of law” was left open – but one wonders when it will come to be decided, and in what fashion.

I have written before that over the last few years, it is neither the legislature nor the executive that is the greatest threat to the freedom of speech, but the judiciary. Whether it is Article 21 or Article 142 or PILs, the judiciary is not only failing to act as a shield to protect free speech against State encroachment, but is acting like a sword to cut down free speech. To the framers of our Constitution, who saw an independent judiciary as the only bulwark between civil rights and State power, this would be a matter of great dismay.

And lastly, consider the optics of this whole situation. A film was made that satirises the legal profession. A lawyer filed a petition against it. Two judges decided that this film – which satirised the legal profession – was prima facie in contempt of court. They constituted a “committee” – a majority of whose members were also lawyers – to watch the film and decide whether their own profession was being permissible satirised (in Law School, one of the first principles we were taught is thou shalt not be a judge in thine cause – except, it seems, when you literally can). Two Supreme Court judges were asked to intervene. They refused. The “committee” – with its lawyers – found that the film “defamed” the judiciary, and ordered cuts. These cuts were implemented by two other judges. To a film that satirised the legal profession.

Whichever way you want to slice this, it does not look good.

(Disclaimer: this writer was involved in the Supreme Court hearing on February 3, on behalf of the film producers. The account of the Supreme Court proceedings on that day is based on first-hand experience).

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Filed under Free Speech, Judicial Evasion

‘O Brave New World’: The Supreme Court’s Evolving Doctrine of Constitutional Evasion

The Government initiates a program on a national scale, which has far-reaching effects upon the lives of citizens. It stakes its credibility and prestige upon the program, and defends its transformative potential for the country. Critics disagree. Among other things, they argue that the program is illegal without the sanction of law, and also infringes constitutionally guaranteed fundamental rights. The critics move the Court, and request an early hearing, since the government’s program is changing facts on the ground on a daily basis. The Court hears the case. Perhaps it agrees with the critics, and invalidates the program. The government then has to go back to the drawing board, iron out the illegalities, and come back with another program (if it considers it to be worth the effort). Or, the Court agrees with the government, and holds the program to be legally and constitutionally valid, and the government carries on. In both situations, the Court pronounces upon the scope and limitations of the fundamental rights at issue.

That is an example of a well-working system of checks and balances. However, over the last few months, there are indications that this system is not working in quite the manner that it should. This is a cause for significant concern.

The Aadhaar Hearing

The first substantive hearing in the constitutional challenge to the government’s Aadhaar Program took place on 23rd September, 2013 (all orders in Writ Petition 494/2012 can be accessed here). On that day, a two-judge bench of the Supreme Court admitted the petition for hearing, and passed the following order:

… no person should suffer for not getting the Adhaar card inspite of the fact that some authority had issued a circular making it mandatory.

On 8th October, 2013, the case was listed for “final hearing” on 22nd October, 2013. On 26th November, 2013, the Court passed directions for impleadment of all states and union territories. The case then proceeded to a three-judge bench. Through the course of January to April 2014, the three-judge bench heard arguments by Mr Shyam Divan, senior counsel for the Petitioner, on a number of dates. At the end of April, the case was listed for July, but only came up for hearing next more than a year later, on 21st July, 2015. Through the last week of July and the first week of August, the three-judge bench heard arguments from both Mr Divan and Mr Gopal Subramaniam .

At this point, the Attorney-General argued that there was no fundamental right to privacy under the Indian Constitution, and cases that had consistently held to the contrary since Gobind vs State of MP in 1975 were wrongly decided, since they had ignored binding eight and six-judge bench decisions. He asked for a reference to a larger bench. The Court agreed. On 11th August, 2015, it passed a detailed reference order.  In the order, it noted that:

“We are of the opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in M.P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality.”

The Court also stated:

“Having regard to importance of the matter, it is desirable that the matter be heard at the earliest.”

Until the time that the case could be heard by a larger bench, the Court also issued the following directions:

“The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen… [and] the Unique Identification Number or the Aadhaar card will not be used by the respondents for any purpose other than the PDS Scheme and in particular for the purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene. The Aadhaar card may also be used for the purpose of the LPG Distribution Scheme.” 

There was one more substantive hearing, on 15th October, 2015. A five-judge bench of the Court added some more schemes to the ones listed out in the 11th August order, for which the Aadhaar Card could be used. The Court reiterated that:

We will also make it clear that the Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other.”

And:

“Since there is some urgency in the matter, we request the learned Chief Justice of India to constitute a Bench for final hearing of these matters at the earliest.”

A five-judge bench is constituted by the Chief Justice at his discretion. After the hearing of 15th October (fifteen months ago), the case has not been heard. In the meantime, the government’s conduct is well-known. The Aadhaar Act was passed, to give statutory sanction to the program (questions have been raised about the constitutionality of the Act as well, especially regarding excessive delegation and the fundamental right to privacy). Despite numerous Supreme Court directions that Aadhaar could not be made mandatory, there have been reports on an almost weekly basis that an Aadhaar Card is effectively a requirement for some or the other benefit (the most recent one being today, for the MGNREGA). Contempt petitions have been filed before the Court, which remain pending.

In light of the Government’s conduct over the last year and a half, the Court’s refusal to hear the case goes beyond ordinary situations of matters being stuck in the courts for long periods because of judicial backlog and pendency. Aadhaar is a classic case where the more the Court delays, the greater the Government’s ability to eventually present it with a fait accompli – the fait accompli being that Aadhaar coverage becomes so deep, pervasive and intertwined with citizens’ lives, that even if the Court was to hold it unconstitutional, it would be, virtually, a technical or physical impossibility to undo it – or, if not an impossibility, the cost of disruption would be so prohibitively high, that no Government could reasonably implement it, even if it wanted to.

For these reasons, when the new Chief Justice assumed office this week, the case was mentioned before him for an urgent hearing. The request was declined (with observations that are deeply concerning, if they reflect the Court’s institutional position on fundamental rights). Presumably, it will not be heard any time soon – despite two judicial observations from the middle of 2015 highlighting the urgency of the case, and the need for a quick hearing.

Demonetisation

On November 8, 2016, the Prime Minister announced that Rs. 500 and 1000 notes would cease to be legal tender from midnight. In the coming weeks, this announcement was followed by a slew of notifications from the Reserve Bank that placed various restrictions on what citizens could or could not do with their money – how much they could withdraw from ATMs, how much they could withdraw from banks etc. At the time, the Prime Minister made the prediction – which now appears to be a little optimistic – that normalcy would return within fifty days – that is, by the end of the year.

As Namita Wahi argues, there are substantive legal arguments for the proposition that the demonetisation policy violated both law and the Constitution. On the first, arguably, the policy was ultra vires the RBI Act, and consequently, required the sanction of either a law, or an Ordinance (there is an Ordinance now). And secondly, that the Policy violated the right to property (Article 300A), as well as the fundamental rights to trade and life.

These arguments were raised by various petitioners challenging various aspects of the policy, who moved the Court soon after November 8. A number of abortive hearings took place over the course of the last week of November, and the first half of December. Finally, the Court referred the case to a five-judge bench, and formulated a number of questions about the legality and constitutionality of demonetisation.

It is now almost two months after the initial announcement. The Prime Minister’s self-imposed time limit of 31 December has expired. Many deaths have been reported. Much of the cash that was supposed to have been taken out of circulation is – reportedly – back in banks; whether or not it is true, surely, if not now, then soon enough, demonetisation will begin to wind itself down. In the meantime, there is no sign of the Constitution Bench.

Judgment by Evasion

Rarely – if ever – are contesting parties before a Court on equal terms. Before the Supreme Court, one party will always have the judgment of the lower Court in its favour, and consequently (absent a stay) will benefit from the case getting held up in the Court. In that sense, Aadhaar and Demonetisation are simply incidents of a broader problem of delay and backlog, where failure to hear and decide cases expeditiously does not cause equal harm to both sides, but benefits one at the cost of the other.

However, there is something more here. First of all, Aadhaar and Demonetisation are not ordinary cases – they are classically about the exercise of immense coercive State power against citizens. Adjudicating the legal validity of such State action is at the heart of why we have an independent judiciary. It is the reason why there is a system of checks and balances: because when power on such a scale is unrestrained by the rule of law and by constitutional norms, history has told us more than enough times what follows.

Secondly, as discussed above, this is not a case involving disputed property where, ten years later, the Court can decide the case and order the person in possession of the property to hand it over the victorious litigant. Aadhaar and Demonetisation are cases where, if the Court does not decide the issue within a certain period of time, any future decision will be an exercise in futility. It makes no sense to decide Demonetisation next year, after the policy has run its course – whatever rights were violated (if, that is, rights are being violated) cannot then be redressed. Similarly, it makes no sense to decide the constitutionality of Aadhaar after the program has begun to be used to avail virtually all (public, and some private) social services, and can no longer feasibly be disentangled from the daily lives of citizens.

Consequently, by refusing to decide, the Supreme Court effectively does decide – in favour of the Government. In effect, it upholds the validity of Aadhaar without hearing arguments on the constitutional questions, and without passing a reasoned judgment on Aadhaar and the right to privacy. In effect, it upholds the Government’s Demonetisation policy without deciding whether it is open to the State to place onerous restrictions on what citizens are allowed to do with their own money. In effect, it takes the side of State power, against citizen.

It is open to the Supreme Court to do so. But if that is what it is doing, then it ought to have the moral courage to defend its position in a reasoned judgment. It ought to explain – publicly – to citizens the scope of their fundamental right to privacy, and the manner in which Aadhaar is consistent with it. Once the Supreme Court decides, then its judgment can be engaged with, defended, criticised, its reasoning scrutinised closely, its positions critiqued. That is how it ought to be. But by simply refusing to hear and decide the case, where the consequences of non-decision are both terribly high and absolutely decisive, the Court only ends up abdicating its role as the organ of the State that is meant to stand between citizen and government power, and to keep the latter within its constitutionally-defined spheres.

The fact that this is how two of the most important constitutional issues in recent times have fared in the Supreme Court suggests that scholars of the Court can no longer make do simply with studying what the Court has held, and the jurisprudence that it has created through its judgments. Scholars must now also study this evolving jurisprudence of Constitutional evasion, which is defined by refusal, and by silence.

 

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