The Supreme Court’s 4G Internet Order: Evasion by Abnegation

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


Evasion by Abnegation: A new facet of the Doctrine of Judicial Evasion?

This blog has often spoken of judicial evasion. However, the Supreme Court today demonstrated that the discussion thus far had missed out a very important strand of the doctrine of judicial evasion. Whether it be electoral bonds or federalism, judicial evasion till now appeared to be “Not Now” version, i.e. not deciding issues until it was too late for the outcome to matter. The Supreme Court today shows us in its order disposing of FMP v UT of J&K and anr. (“Order”) that an even more potent version is the “Not Us” version: i.e. not simply Evasion by Adjournment, but rather, Evasion by Abnegation. In a writ petition pertaining to the validity of restrictions on 4G in Jammu & Kashmir, the Court held:

A perusal of the submissions made before us and the material placed on record indicate that the submissions of the Petitioners, in normal circumstances, merit consideration. However, the compelling circumstances of cross border terrorism in the Union Territory of Jammu and Kashmir, at present, cannot be ignored…

 We, therefore, find it appropriate to constitute a Special Committee comprising of the following Secretaries at national, as well as State, level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions…

 The Special Committee is directed to examine the contentions of, and the material placed herein by, the Petitioners as well as the Respondents. The aforesaid Committee must also examine the appropriateness of the alternatives suggested by the Petitioners, regarding limiting the restrictions to those areas where it is necessary and the allowing of faster internet (3G or 4G) on a trial basis over certain geographical areas and advise the Respondent No. 1 regarding the same, in terms of our earlier directions.

In substance, what the Court appears to have held is that the contentions of the Petitioner were to be adjudicated not by the Court, but by the “Special Committee” constituted by the Court, consisting of the Home Secretary and Secretary, Communications (of the Central Government) and the Chief Secretary of the UT of Jammu & Kashmir. With great respect, it is submitted that it is difficult to reconcile the Order of the Supreme Court with the language of Article 32 of the Constitution of India. Article 32 says:

The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed…

 The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

This Article has not at all been adverted to by the Supreme Court. It is respectfully submitted that given the existence of the fundamental right to judicial remedies, the most powerful court in the world is duty-bound to consider exercising its jurisdiction under Article 32. It is not competent for the Court to hold that some other body – especially one consisting of Secretaries of the very Departments whose orders are in question – should consider the contentions of the Petitioner and the “appropriateness of the alternatives”.

It was incumbent on the Court to itself consider the relevant materials; and adjudicate – one way or the other – on the validity of the challenged measures. In doing so, the Court would of course have had to consider how much deference to give to executive assessments in matters of national security and what the standards of judicial review should be. It would then have been possible – whatever the Court ultimately decided – to consider and analyse the reasoning of the Court. However, “deference” cannot amount to “abnegation”; and the tenor of the Court’s order indicates that the Court was not simply “deferring” to an executive assessment of the facts, but was effectively ceding jurisdiction to decide issues of constitutional law. In State of West Bengal v Committee for the Protection of Democratic Rights, a Constitution Bench of the Supreme Court held:

In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the constitutional courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution…

With great respect, the Order does not take into account the significance of this position.

The Zamora and Deference

In the Order, what the Court has essentially held is that due to “compelling circumstances of cross-border terrorism”, the Supreme Court must refuse to exercise jurisdiction under Article 32. In substance, then, the fundamental right under Article 32 (which is not simply a right to have some remedy, but a right to a judicial remedy before the Supreme Court) is a dead letter, in view of “compelling circumstances of cross-border terrorism”. Given that the right under Article 32 cannot be suspended “except as otherwise provided for by this Constitution”, the Order demonstrates that the following statement in a previous post on this blog was entirely appropriate:

… there is no proclamation of Emergency, but the Court – on its own initiative – acts as if there exists an Emergency, and its orders reflect judicial standards that are uniquely applicable to the Emergency regime. And this, in my submission, is the most appropriate conceptual framework within which to analyse the Court’s conduct on the Kashmir petitions over the last two months – a framework that is now fortified by the State’s first formal statement to come on the court record.

Before the Supreme Court, the Attorney-General placed reliance on the advice of the Privy Council in The Zamora, where Lord Parker stated:

Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a Court of law or otherwise discussed in public.

This statement was made in the context of deference on factual determinations of the executive. The Court noted:

Their Lordships are of opinion that the judge ought, as a rule, to treat the statement on oath of the proper officer of the Crown to the effect that the vessel or goods which it is desired to requisition are urgently required for use in connection with the defence of the realm, the prosecution of the war, or other matters involving national security, as conclusive of the fact

In its Order in FMP, what the Supreme Court has done is not simply a deference to a factual determination of the executive. Indeed, it appears that the “factual” materials relied on by the Court (to which, at best, the above paragraph may apply) were in the form of a “Note” submitted by the Respondents after the matter was reserved for orders. This “Note” was – according to the Petitioner’s responsive submission – not supported by any materials on affidavit. But leaving that aside, what the Note indicates is that “militancy has significantly increased in the recent times…” and gives instances of encounters and attacks which took place in the Kashmir valley in April and May 2020. However, as the Petitioner’s responsive submission pointed out, this was much after the impugned restrictions in any case: how do these events – which took place after the restrictions were in place – demonstrate the need for having the restrictions in the first place? The “Note” also purports to rely on a report in The Print, about the Pakistani Army’s “Green Book” which (it is stated) calls for “information warfare”. (The Note only annexed the first print page of the news report, but the full report in The Print is available here.) The statement regarding information warfare appears in an essay by a Peshawar-based journalist in the Green Book. Without needing to go into any factual dispute, even assuming that the Peshawar-based journalist’s suggestions were indeed acted upon by the Pakistani establishment (and indeed, it would be surprising if “information warfare” is not on the table at all in these times), the legal question is: does this factual basis justify the restrictions? The Court makes no attempt whatsoever to engage with this legal question. [Further, another relatively minor point may perhaps be that orders must be defended on the basis of the reasons recorded at the time the orders are passed and not on the basis of subsequent reasoning: orders are not like old wine becoming better as they grow older.]

In any case, The Zamora was a case involving the wartime requisition of copper (the copper admittedly being contraband of war) from a ship headed purportedly to a neutral port, but claimed by the Government to be heading to an enemy port. The issue turned on whether this requisition was urgently required for national security reasons or not. It is noteworthy that in the same case, it was also pointed out:

 If the Court is to decide judicially… it cannot, even in doubtful cases, take its directions from the Crown, which is a party to the proceedings… It must itself determine what the law is according to the best of its ability, and its view, with whatever hesitation it be arrived at, must prevail over any executive order…

And on the facts, in The Zamora, the question was decided against the government because there was no evidence forthcoming about the purpose of the requisition. As the House of Lords clarified in Council of Civil Service Unions about Lord Parker’s statement about national security:

These words were no abdication of the judicial function, but were an indication of the evidence required by the court. In fact the evidence adduced by the Crown was not sufficient, and the court ruled that the Crown had no right to requisition. The Crown’s claim was rejected “because the judge had before him no satisfactory evidence that such a right was exercisable” (p. 108). The Prize Court, therefore, treated the question as one of fact for its determination and indicated the evidence needed to establish the fact. The true significance of Lord Parker’s dictum is simply that the court is in no position to substitute its opinion for the opinion of those responsible for national security.

The Zamora consequently does not at all support the stand that it is open to the Court to effectively refuse to hear a petition alleging violation of fundamental rights on account of the perceived demands of national security. Other than The Zamora (and of course, the decision in Anuradha Bhasin), the Court cites no authority whatsoever for the proposition that “national security” is a complete answer to a claim of violation of fundamental rights. The Court might as well have relied on the majority in Liversidge v Anderson. It might have expressly clarified for once and for all that however deep ADM Jabalpur is buried, Lord Atkin’s dissent (“In this country, amid the clash of arms, the laws are not silent…”) was not applicable in India.

The constitution of the Special Committee; and a (forlorn?) hope

Further, the basis for the direction to constitute a Special Committee of three secretary-level officers is also not entirely clear. The question raised before the Court would require findings on questions such as (a) the appropriate standard of review, and (b) the validity on the restrictions on the fundamental rights in question. The Court itself appears to accept that “the submissions of the Petitioners, in normal circumstances, merit consideration.” These are, very clearly, issues requiring the application of a judicial mind. The Supreme Court has stated in Madras Bar Association v Union of India (per Nariman J., concurring):

the decision by superior courts of record of questions of law and the binding effect of such decisions are implicit in the constitutional scheme of things. It is obvious that it is emphatically the province of the superior judiciary to answer substantial questions of law not only for the case at hand but also in order to guide subordinate courts and tribunals in future. That this is the core of the judicial function as outlined by the constitutional provisions set out above… All substantial questions of law have under our constitutional scheme to be decided by the superior courts and the superior courts alone

If the executive had stated that violations of fundamental rights will be dealt with by a committee of three Secretary-level officers, it is unthinkable that such a mechanism would be constitutionally valid. Perhaps the only way to save such a mechanism (although even that is doubtful) would be for the decision of the Committee itself to be open to question and the Supreme Court then undertaking a proper judicial review of such decision. The Supreme Court’s Order grants no such liberty expressly permitting the Petitioner’s to come back to the Supreme Court; and the entire tenor of the Order with its focus of “national security” and “compelling circumstances” appears to suggest that whatever is held by the Committee will be effectively conclusive. One of course hopes that that is not the case; that today’s Order ultimately is seen as ‘only’ Evasion by Adjournment  (for a future Bench to re-consider after the Special Committee decision) and not the cementing of a culture of Evasion by Abnegation.

Conclusion

To conclude, it may be worth noting one further aspect. The Supreme Court’s admission in the Order that the submissions of the Petitioner merited consideration “in normal circumstances”, but its ultimate holding that those submissions cannot be considered by the Supreme Court in view of “compelling circumstances of cross-border terrorism”, is particularly striking. In A v Secretary of State for the Home Department, Lord Hoffman (himself not particularly averse to giving a long leash to the executive in matters of national security) observed:

 The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve…

One is forced to wonder: have we reached a situation where we run the risk that this quote becomes an accurate summary of the present?

On the role of courts: and why the supreme court is playing the waiting game

On the Supreme Court’s last working day of 2019, it agreed to hear the constitutional challenge to the Citizenship (Amendment) Act 2019 (“CAA”). With this, the court takes into its winter vacation the challenges to the CAA, the amendment of Article 370 and the internet shutdowns in Kashmir. Outside the cloistered halls of the court, the public debate over the legality and desirability of these measures has reached fever pitch. With both the legal and political processes of contestation in full swing, it is an appropriate time to examine how divorced the two truly are.

Our trust in courts as institutions of justice flows from a few key ideas: that courts are isolated from short term political pressures, they decide on the basis of settled legal principles irrespective of how politically sensitive a case is, and they are independent from the elected government of the day and thus serve as a check on government power. This piece critically examines these assumptions about courts. I argue that while courts do decide cases in accordance with legal principles, the actual outcomes of crucial constitutional cases balance the requirements of the law, deference to the government, and deference to public sentiment. Recognising that alongside normative legal principles, public sentiment and the government have a crucial role to play in constitutional adjudication re-emphasises the need for active political contestation and debate over these issues.

Isolation, independence and matters of principle

Courts are understood as being isolated from short term political pressures. Unlike elected legislators, who are accountable to their constituents and respond to their immediate needs, unelected judges with fixed tenures and salaries can deliberate in a ‘neutral’ manner and render decisions that may be politically unpopular but necessary for the long term preservation of human rights and democracy. Judges are not bound by party ideology or the need to garner the popular vote, so they can arrive at substantively ‘better’ decisions. For example, after a terrorist attack, public sentiment may overwhelmingly favour the torture and public execution of a captured terrorist. The government, acting on the demands of the electorate, may decide to torture and execute the terrorist (after all, good government responds to what the people want). The courts however, isolated from public sentiment and understanding the long-term benefits of upholding the rule of law and human rights, can ensure the captured terrorist receives a fair trial.

A second assumption underpinning the public trust in courts is that courts rely on precedent (stare decisis) and settled legal principles to decide cases. Therefore, once courts construe the phrase ‘equality’ or ‘liberty’ as having an expansive meaning, the same expansive interpretation will subsequently be applied irrespective of how politically significant or insignificant the facts of a case. This is often why progressive judgements are celebrated, because we presume that the reasoning of these judgements will bind future benches of the court and lower courts. The last, and perhaps most significant, assumption about courts is that they stand independent from the elected government. Coupled with their isolation from short-term political pressures and their commitment to decide cases on legal principles, this leads to the overarching argument that courts stand as a check against the abuse of government power.

A chequered track record

A close examination of the track record of courts during periods of regularised and flagrant human rights violations casts doubt on the argument that courts are effective checks on majoritarian government power. In India, the most famous example of the court’s failure to resist the use of government power is ADM Jabalpur v S S Shukla. The case, heard at the height of the emergency imposed by former Prime Minister Indira Gandhi after her election was challenged in 1975, centred around whether individuals detained by the government (often political opponents of the Prime Minister) had a right to approach the courts for relief during the emergency. Despite several High Courts holding that detained persons had a right to approach the court even during an emergency, in ADM Jabalpur the Supreme Court held that no such right existed and left the detentions to the sole supervision of the government. The Indian Supreme Court is not alone in turning a blind eye to the exercise of government power against its citizens during times of national or political crisis. After the attack on Pearl Harbour, the U.S. Supreme Court upheld the internment of all persons of Japanese ancestry in Korematsu v United States – citing the overriding needs of national security and avoidance of espionage. In Liversidge v Anderson the House of Lords held that the Home Secretary did not have to objectively justify his detention order with reasons and the such matters were not justiciable in courts. These cases have since been overruled or denounced as ‘black marks’ on an otherwise unblemished record of judicial history, but they serve as powerful reminders that when governments exercised their power against citizens in the most extreme ways, courts have been found to be inadequate protectors.

Sabarimala – the Supreme Court’s problem child

A prime example of how far the Indian Supreme Court’s behaviour can stray from the core assumptions we associate with courts acting as politically insulated institutions dispensing justice according to legal principles is the court’s treatment of the Sabarimala dispute. To recap: in 2018 a five-judge bench of the Supreme Court struck down the prohibition on menstruating women entering the Sabarimala temple as violating the constitutional guarantees of equality and non-discrimination. The judgement led to a public backlash in Kerala (the state where the Sabarimala temple is situated). Those opposing the judgement took the law into their own hands and refused to permit the entry of women into the temple, often attacking women who tried to enter. A review petition was filed against the 2018 judgement, the significant irregularities of which have already been addressed on this blog (here) and do not need to be rehashed. It is sufficient to note that one judge (Khanwilkar J) refused to stand by the judgement he had signed less than a year ago in 2018 and in November 2019 the court decided that the 2018 judgement needed to be ‘reconsidered’ by a larger bench. To understand what happened next, it is important to note that by referring the dispute to a larger bench, the court did not stay the 2018 judgement but merely kept the review petition pending. The pendency of a review petition does not deprive a judgement from having the force of law. This means that at the time of writing this post, the 2018 judgement remains good law and a woman should be able to enter Sabarimala. When the Supreme Court was asked to direct the Kerala Government to uphold and enforce the judgement, the Chief Justice of India acknowledged that there was no stay on the 2018 judgement, but refused to direct the State Government to enforce the judgement – noting the matter was “very emotive” and the court wanted to avoid violence.

The treatment of Sabarimala is a testament to how the Indian Supreme Court consider both legal principles and public sentiment in deciding constitutional cases. The 2018 judgement was based precisely on the legal principles we associate with constitutional courts. However, unlike the court’s decisions decriminalising consensual gay sex or adultery, where the court’s decision faced widespread and organised public resistance, the court did a double take, refusing to enforce its judgement and stating that the judgement itself needed to be ‘reconsidered’. The ‘settled’ legal principles of equality laid down in 2018 (which we expect to bind future courts) succumbed to the changed political landscape of 2019. Changing public sentiment leading to the court ‘flip-flopping’ on outcomes is not new, and not always detrimental to the rights of citizens. For example, in 2013 the Indian Supreme Court refused to decriminalise consensual gay sex but five years later the court did decriminalise it. It is perfectly possible for future benches to disagree with past ones; however, the incremental nature of such change is essential to maintain the public trust that courts are insulated from the politics of the day. The casting in doubt of Sabarimala within a year, in the face of abject and consistent non-compliance with the judgement by the government and citizens, points to just how thin the court’s veneer of being insulated from public sentiment and deciding cases purely on legal principles is.

Plenty has been written on why the CAA is unconstitutional and should be struck down for violating Article 14 and its resultant jurisprudence (including here on this blog). However, the very idea that the court will apply the legal principles it has previously laid down is caveated by the court’s regular deviation from settled principles in the face of troubling ground realities or persistent public sentiment to the contrary.

Judicial independence 

The last assumption is that courts stand independent of the government and form the ultimate protectors of individual rights against state action. Historically, we have seen that this has not always been the case. As a matter of constitutional design, courts control neither the ‘sword nor the purse’. In other words, courts rely on the government to implement and abide by their decisions. The extent to which the government does so is a function of how much public legitimacy and authority the court wields at any given time. In a handful of jurisdictions, court have over centuries entrenched themselves to a point where non-compliance with their judgements is unthinkable and a government refusing to comply with a court judgement would risk being voted out of power by an electorate that deeply values the rule of law. For example, when the British Prime Minister’s advice to the Queen to suspend parliament was found to be unconstitutional by the U.K. Supreme Court, the question was not whether the Prime Minister would comply with the decision, but rather whether he would apologise to the Queen and British public.

In most jurisdictions however, where courts have not had the time or opportunity (or have squandered both) to create a deep sense of institutional credibility and win the public trust, courts are far more vulnerable to government interference.  If a court were to repeatedly strike down government action, the government can register its discontent with the court in several ways. The most common (and visible) tactic is to delay/interfere with the process of judicial appointments. Right from Indira Gandhi’s appointment of A N Ray as Chief Justice (superseding the three senior most judges of the Supreme Court who had ruled against her government) to the current government’s delays in confirming judges, Indian courts have regularly been susceptible to government pressure over judicial appointments. The government may also refuse to provide funding and infrastructure for courts. At the extreme, the government can simply refuse to comply with or implement the judgements of the court. The Indian Home Minister’s recent suggestion that the non-implementation of Supreme Court judgements was an acceptable state of affairs runs dangerously close to an outright refusal to acknowledge the authority of the court. In such situations, courts must not only apply the law, but also balance the needs of the law with deference to the government to ensure the court’s continued survival as an institution.

Indian jurisprudence is replete with such deference. In 1975 when the Allahabad High Court found the then Prime Minister (Indira Gandhi) guilty of corrupt practices and invalidated her electoral victory, the government passed a constitutional amendment designed specifically to nullify the invalidation. In the Supreme Court, the constitutional amendments were struck down, but the Prime Minister’s election victory was upheld, allowing Indira Gandhi to remain in power. In Maneka Gandhi v the Union the petitioner’s passport was impounded, and no reasons provided. She approached the court contending that her right to a fair trial and to put forth her defence had been taken away. In a sweeping judgement, the court significantly expanded the scope and rigour of scrutiny, holding that procedure by which liberties are infringed must be ‘fair, reasonable and just’. However, rather than invalidate the order impounding of the passport or the provisions of the Passport Act, the court took on record the Attorney General’s assurance that the government would ‘consider’ the court’s observations and left the matter to the government. Ironically, the last paragraph of Maneka Gandhi (widely touted as a high watermark of Indian human rights jurisprudence) reads:

“The Attorney General assured us that all the grounds urged before us by the petitioner and the grounds that may be urged before the authority will be properly considered by the authority and appropriate orders passed. In the result, I hold that the petitioner is not entitled to any of the fundamental rights enumerated-in Article 19 of the Constitution and that the Passport Act complies with the requirements of Art. 21 of the Constitution and is in accordance with the procedure established by law.”

The Chief Justice’s recent refusal to pass directions for the entry of women at Sabarimala stems in part from the fact that both the Kerala Government and Central Government have indicated their unwillingness to carry out such directions. An order directing the authorities to enforce the judgement would likely be ignored by both governments, triggering a constitutional crisis.

The present day

Having understood that while not entirely independent, the court is undoubtedly uniquely situated, let us examine the court’s recent decisions where the stakes for the government were particularly high. In its Aadhar judgement, the court upheld the government’s collection and use of bio-metric data as part of the Aadhar scheme. The court in 2018 also held the Aadhar Act was correctly certified by the Speaker as a money bill (meaning it was not subject to scrutiny by the Rajya Sabha). But a year later in Rodger Matthew v South Indian Bank the court held that the Aadhar judgement’s reasoning on the issue of money bill was “arguably liberal [in favour of the government]” and “not convincingly reasoned”. The question of how future courts should construe money bills has been referred to a larger bench but peel away the Supreme Court’s strategic antics and the decision in Rodger Matthews is a damming admission that the Aadhar Act was unconstitutional but still upheld by the court.

The Supreme Court’s treatment of the petitions challenging the internet shutdown and detentions in Kashmir and the amendment of Article 370 has been the clearest example of the court’s deference to the government of the day. On 16 September 2019 the court passed an order (analysed here) which didn’t require the government to disclose the legal source of the internet shutdown and left it to the unrestricted discretion of the government to make “endeavours” to restore “normal life”. On 16 December 2019 the internet shutdown in Kashmir entered its 134th day, the longest ever recorded in a democracy. At the time of writing this post, the court is yet to adjudicate on the constitutionality of the internet shut down and the hearings challenging the actual amendment of Article 370 have just taken off.

Recall that vulnerable courts are often called upon to balance the meaning of the law with ensuring a working relationship with the government. After 70 years of democratic constitutionalism, our courts are certainly robust enough to avoid obliteration at the hands of the government. They regularly strike down state and central government actions found to be violative of the Constitution. However, with cases such as Aadhar, Sabarimala, the CAA and Kashmir, where the political stakes for the government are exceptionally high, cracks begin to emerge in the court’s multi-faceted balancing act between the law, public sentiment and deference to the government. In ADM Jabalpur the court compromised its fidelity to the integrity of the law and allowed the government a free reign in return for its continued survival (the supersession of Justice Khanna and the regular transfer of ‘non-complaint’ High Court judges by the government is telling in this regard). Today’s court is neither willing to expressly compromise its intellectual fidelity to the law nor its necessary relationship with the government – and so it sits on the fence, hoping that nobody will notice. The court does not trust its institutional legitimacy is strong enough to rule against the government on politically sensitive matters and continue to maintain a working relationship with the government (the government is equally to blame for this lack of trust). While it also refuses to expressly abandon its fidelity to the integrity of the law (as it did in ADM Jabalpur) and provide express judicial acquiescence of the government’s actions, its refusal to act is fast achieving a similar result indirectly.

Conclusion

Recognising that the central assumptions held about courts as counter-majoritarian institutions are flawed is the first step towards understanding the actions of the Supreme Court recently. The court undoubtedly analyses and applies legal principles on a day to day basis. However, in deciding constitutional cases with high political stakes, courts also consider the impact the decision will have on the government (Aadhaar and Kashmir), the prevailing public sentiment of the day, and the impact on the ground (Sabarimala). Absent any enforcement powers, the court’s is as bold as it thinks the government and people will allow it to be.

In deciding the host of thorny issues on its plate in 2020, the Supreme Court is likely to consider the prevailing public sentiment, strive to maintain a working relationship with the government, and lay down some important law. While the court’s legal questions will be answered by a handful of lawyers in Courtroom 1, the question of how strictly the court will apply the law to fulfil its constitutional role as a meaningful check on government power will be answered by every other Indian. This calls for renewed scrutiny of the court’s actions that denude the legitimacy of its decision making process (some examples include the use of sealed covers, the (mis)use of the master of the roster role, a flawed appointment process and the regular overriding of High Courts). Such actions not only violate core legal norms, but also reduce the public trust in the institution, reducing its institutional authority to act as a check on government power. Understanding the limitations of courts also highlights the need to strengthen the accountability and contestation within other wings of government beginning with our electoral and parliamentary processes.

Kashmir: Fundamental Rights and Sealed Covers

In a previous post, we discussed one of the peculiar features of the ongoing litigation regarding the communications shut-down and other restrictions in Kashmir. One of these features is the absence – in court – of the government’s orders that constitute the basis for the restrictions (whether under the Telecom Suspension Rules or Section 144 of the CrPC). As we discussed, one of the basic requirements for a restriction upon fundamental rights is the existence of a law, and its publication (i.e., the law being made available to the citizens whose freedoms it seeks to restrict). There can be no restriction of fundamental rights in the absence of law, or on the basis of secret laws.

In the hearing of 16th October, this question was (finally) put to the State by the Supreme Court Justices. It is reported that Solicitor-General Tushar Mehta stated that he had no objection to showing the orders to the Court, but considerations of national security may require him to withhold them from the petitioners – and that the petitioners had no “right” to claim access to the orders. Accordingly, the Court’s Order records that if the Solicitor-General wants to claim “privilege” over the orders, then the Court “requests him to file an affidavit indicating the reasons for claiming such privilege.” 

While we wait for the government’s affidavit, it is important to note that what is at stake here is a creeping expansion of the “sealed cover”, which we have seen so often in recent times. It is also important to note that it is entirely unjustifiable: executive orders – passed under cover of law – restricting rights of citizens are not and cannot be subject to legal privilege, or submitted to the Court in a sealed cover. 

At one level, it is questionable whether a legal order revealed only to the Court, and hidden from citizen, counts as “publication” in the relevant sense. But there is a more basic reason why this is unconstitutional. If I – as a citizen – do not have access to the legal order that purports to restrict my rights, I have no effective way of challenging it in Court and demonstrating it to be unconstitutional. I cannot show that it is disproportionate and fails the reasonableness standard under Article 19(2). What this means, in turn, is that effectively, that I have no remedy to enforce my fundamental rights. And a right without a remedy is, of course meaningless. 

Effectively, therefore, denying the order on the basis of which rights are infringed amounts to a suspension of the rights themselves. As explained in a previous post, this can only be done – and that too, partially – through a formal declaration of Emergency; in other words, the government’s arguments are entirely based upon the logic of an Emergency, without the courtesy of a formal declaration of Emergency. 

It is important to remember the last time the contrary argument was made. The last time it was made – unsurprisingly – was in ADM Jabalpur. There, the argument made on behalf of the detenus was that the suspension of the right to move the Court to enforce habeas corpus amounted to the denudation of Article 21 itself. To this, the Court said that the mere fact that you could not move the Court did not mean that the rights ceased to exist – it just meant that you had no way of enforcing them. But if ADM Jablpur has been buried “ten fathoms deep” by Puttaswamy, then surely there is no remaining scope for the Government, in 2019, to make this argument.

Consequently, therefore, no “affidavit” can justify keeping the communications suspension and S. 144 orders secret, and there is no justification for handing them over to the Court in a “sealed cover”. They must be made disclosed, and not only to the petitioners, but to the general public, so that affected parties are in a position to seek remedies before the courts of law. Any other outcome would only amount to a justification of the logic of Emergency.   

Judicial Evasion and the Electoral Bonds Case

On this blog, we have discussed on many occasions a phenomenon that I have labeled “judicial evasion”: by keeping a case pending, and delaying adjudication, the Court effectively decides it in favour of one of the parties (most often, the party in a stronger position, i.e., the government), simply by allowing status quo to continue. A form of judicial evasion has been visible in, for example, the six-year delay in hearing the Aadhaar case (discussed here), the continuing non-decisions in the Delhi v Union of India case (partially discussed here), and the refusal by the Supreme Court to adjudicate the legality of the Bombay High Court censoring a film (discussed here).

However, the Supreme Court’s interim order yesterday in the electoral bonds case presents a textbook example of the subject under discussion. Recall that the electoral bonds case involves a constitutional challenge to the government’s electoral bonds scheme, a method of political funding that is marked by donor anonymity and the elimination of caps on corporate funding (for an extended discussion, see here). After hearing parties for three days, yesterday, the Supreme Court passed an interim order where it refused to stay the scheme, and directed that the details of funding through electoral bonds be made available by political parties to the Election Commission, in a sealed cover, by May 30 (after the end of the general election).

There is a lot to be said for the continuing use of “sealed covers” (especially in a case about the voter’s right to know the sources of public funding), but here, I want to focus on paragraph 11 of the Order, where the Court notes that:

All that we would like to state for the present is that the rival contentions give rise to weighty issues which have a tremendous bearing on the sanctity of the electoral process in the country. Such weighty issues would require an indepth hearing which cannot be concluded and the issues answered within the limited time that is available before the process of funding through the Electoral Bonds comes to a closure, as per the schedule noted earlier.

This may sound reasonable. It is, however, deeply disingenuous. What the Court does not mention here is that the constitutional challenge was filed in early 2018, more than a year ago. It is not as if the petitioners sat on their hands, and waited for the general elections to begin, before rushing to the Court. The scheme was challenged almost immediately after it was enacted into law, notice was issued, and then … nothing happened. In the meantime, electoral bonds were issued on multiple occasions by the SBI, and a significant amount of political funding (more than a hundred crores) was secured through that mechanism, the overwhelming bulk of it going to the ruling party (recall that one of the grounds of challenge is that because of asymmetric anonymity, the scheme unduly favours whichever political party is in power).

The issues at stake were as “weighty” in early 2018, as they are now. Surely, the Court knew this. Furthermore, At the time, there were strong protests against the scheme, and later in the year, a former Chief Election Commissioner publicly criticised them. Everyone knew that general elections would be held in spring 2019. And surely, the Court also knew that an “in-depth hearing” would be required to adjudicate upon the issue. So, to turn around now and act as if these are all fresh developments, that have ambushed the Court unawares, will simply not do: the responsibility for why this hearing only ended up taking place in the middle of the elections, when the Schedule for issuing the Electoral Bonds is more or less over rests solely upon the Court, and it is therefore not open to the Court to now shrug it off by kicking the can off the road.

In paragraph 12, the Court then notes that:

The Court, therefore, has to ensure that any interim arrangement that may be made would not tilt the balance in favour of either of the parties but that the same ensures adequate safeguards against the competing claims of the parties which are yet to be adjudicated.

 

But the Court’s method of ensuring a “balance” is a strange one, because it is effectively to simply let the scheme continue. Ordering that the details of the donations be made available to the Election Commission in a “sealed cover” accomplishes the square root of zero: it would make sense if there was suspicion of illegality. However, the entire constitutional challenge is based on the argument that the Electoral Bond Scheme legalises  wholesale political corruption by allowing for limitless, secret corporate donations to political parties. How exactly, then, has the Court “balanced” the interests of the parties, especially given that a massive chunk of funding through electoral bonds has already taken place over the previous year, because of the Court’s own failure to hear the case?

It is also unclear why three full days of hearing were not enough for the Court to come to a firm conclusion about the prima facie unconstitutionality (or not) of the Scheme, and allow or disallow a stay accordingly. Recall that this is a Court that regularly grants stays on notice day itself, including on issues that are highly complex (the present Chief Justice himself, for example, stayed this very complex Delhi High Court judgment on genetic discrimination on the very first day of hearing). The same Chief Justice has wrapped up two Constitution Bench cases (involving complex issues on separation of powers and on the RTI) within three to four days of hearing, each. How, then, is it suddenly the case that three days of argument are insufficient for grasping the constitutional issues involved in the electoral bonds case?

Ultimately, this has proved to be yet another example of the Court talking a good talk, but failing to act on it when it comes to the crunch. For the last fifteen years, we have multiple judgments of the Court extolling the voter’s “right to know” as an element of Article 19(1)(a), as integral to free and fair elections, as a cornerstone of democracy, and so on. But when it comes to testing these propositions in an actual case – in a constitutional challenge to State action – all these principles suddenly seem to be writ in water.

At the end of the day, however, what stands out in this case is the element of judicial evasion: an issue crucial to democratic functioning, one that concerned the sanctity of the democratic process itself – the very area that Courts are supposed to stand the most vigilant guard over – was allowed to linger until it became more or less academic (as far as the ongoing elections are concerned). One can only hope that this interim order does not now meet the fate of the Aadhaar case, and remain “interim” for the next half-decade.

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.

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.

 

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).

‘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.