I recently spoke on the telephone to a senior sitting judge of the Supreme Court and told him that the public perception of the vast majority of Indian citizens is that the Supreme Court, of late, has largely abdicated its solemn duty of upholding the constitution in its true spirit and protecting the liberties of the people.
Though while a sitting judge I was much senior to the judge I spoke to, I said that since I have retired I am no longer a judge, but a member of the public. I was therefore speaking as a representative of the public, not as a judge, and the public perception is that the Supreme Court is no longer doing its constitutional duty of protecting citizens against political and executive high handedness, arbitrariness and illegalities. Instead, it seems to have largely surrendered before the government, whose bidding it is often doing.
I told him that after the present lockdown is over, he should arrange for a meeting between me and some sitting judges of the Supreme Court (at his residence or elsewhere) in which I would like to present my views. He agreed to this.
I have written earlier about several instances where the Supreme Court seems to have failed in its duty of protecting the people’s rights, so they need not be referred to again.
In the Indian constitution promulgated on January 26, 1950, there are a set of fundamental rights of the people, modelled on the Bill of Rights in the US constitution. The judiciary was made the protector and guardian of these rights, otherwise they would remain only on paper.
A few months after the promulgation of the constitution, a constitution bench of the Supreme Court held in Romesh Thappar vs State of Madras that in a democracy people have a right to criticise the government. The court observed, “Criticism of government exciting disaffection or bad feelings towards it, is not to be regarded as a justifying ground for restricting the freedom of expression, or of the press.”
The same view in different words was taken in a very recent decision by Justice Abdul Quddhose of the Madras High Court in his historic verdict in Thiru N. Ram vs Union of India and anr in which the learned judge observed, “A very important aspect of democracy is that citizens should have no fear of the government. They should not be scared of expressing views which may not be liked by those in power.” He went on to say, “Criticism of policies of the government is not sedition unless there is a call for public disorder or incitement to violence.”
Justice Quddhose also observed, following the Supreme Court’s 1956 verdict in Kartar Singh vs State of Punjab, that people in power must develop ‘thick skins’. In other words, the authorities should have broad enough shoulders to bear criticism.
This decision is very relevant in the prevailing situation today. Nowadays politicians in power are often very touchy, with huge egos, and unwilling to put up with any criticism from anyone. Well known cases are of Safoora Zargar, a young Kashmiri woman arrested on patently fabricated charges for criticising the Citizenship (Amendment) Act, Dr Kafeel Khan and Sharjeel Imam, etc.
Prof Ambikesh Mahapatra of Jadavpur University was arrested in 2012 for sharing a cartoon of West Bengal chief minister Mamata Banerji on social media, cartoonist Aseem Trivedi was arrested on a charge of sedition for making a cartoon depicting politicians as corrupt, and folk singer Kovan was arrested in Tamil Nadu in 2015 for criticising Jayalalithaa in connection with corruption in liquor business.
Journalists who criticise the govt or a Minister are often slapped with sedition charges or detained under draconian laws like NSA or UAPA, e.g. Kishorechand Wangkhem who was arrested in 2018 for criticising Manipur CM Biren Singh. A journalist, Pawan Jaiswal, was arrested in Uttar Pradesh in 2019 for reporting that children in a primary school in Mirzapur were being given only roti and salt as a mid-day meal. The researcher-columnist Abhijit Iyer-Mitra was denied bail by the bench of the Supreme Court presided over by then CJI ( and now MP) Ranjan Gogoi in December 2018 although his only ‘offence’ was at most a minor one – of posting a satirical tweet on the Konark temple (for which too he had promptly apologised).
On May 11, Dhavai Patel, editor of a Gujarati online portal ‘Face of the Nation’ was arrested for sedition for publishing a news item that the Gujarat chief minister, Vijay Rupani, was likely to be replaced.
A large number of similar instances can be given of illegal and unwarranted arrests and detentions at the instance of vindictive politicians. The question is whether, like Bheeshma Pitamah turning a blind eye to the disrobing of Draupadi, the Supreme Court should ignore these blatant and glaring illegalities. What then will remain of the numerous verdicts of the court itself stating that the Supreme Court is a guardian of the people’s rights?
In Ghani vs Jones (1970), Lord Denning observed: “A man’s liberty of movement is regarded so highly by the laws of England that it is not to be hindered or prevented except on the surest ground.” Whenever a habeas corpus petition (a petition praying for release from illegal custody) comes before a British judge, he sets aside all other files, and takes up the petition as having priority over every other case, since it relates to individual liberty. But what was the performance of the Supreme Court in the habeas corpus cases of Kashmiri leaders detained after the evisceration of Article 370 on August 5, 2019? The cases were adjourned month after month, and many are still pending, whereas the petition of Arnab Goswami, known for his affinity to the government, was taken up on top priority basis. What message does this send?
In my opinion the Supreme Court (and high courts) should have taken suo motu cognizance of these patently illegal arrests and detentions, and quashed them with heavy costs, not only on the government committing these illegalities, but also on the police officers who carried out these illegal orders.
In an earlier article, I have argued that policemen should refuse to carry out illegal orders. In the Nuremberg trials, Nazi war criminals took the plea that they were only carrying out orders of their superior Hitler, but that plea was rejected and many were hanged.
It is time now for courts to resume their solemn duty of protecting the liberties of the people, and start imposing heavy fines on politicians at whose instance illegal arrests and detention orders are passed, as well as policemen carrying out such illegal orders of political authorities.
Markandey Katju is a former judge, Supreme Court of India