It was one of the most vacuous hearings the Supreme Court has done in its history.
It was an exercise in futility, but more than that, it was also an example of how the courts get tempted to be seen as appearing on the right side of history by taking the easiest route, or to appeal to popular sentiment and be seen as the real patron of the people. It is not about justice at all.
It was, to put it bluntly, a pitiable attempt to gather brownie points for itself in the case without making any investment. We can also say that it weakens the concept of suo motu cognisance. It is anyone’s guess that this move must have annoyed the Calcutta high court which had taken upon itself the role of playing monitor.
On August 18, we learnt that the Supreme Court has taken suo motu cognisance of the rape and murder of a trainee doctor at the RG Kar Medical College and Hospital in Kolkata. By the time the sensory organs of the Supreme Court conveyed to its brain that something terribly serious had happened which required its intervention, much had happened already. The Calcutta high court was super active. It had already transferred the case to the Central Bureau of Investigation, taking it away from the hands of the Bengal police. It had also asked the agency to file periodical reports before the court. It had also reprimanded the state, asked it to sympathise with the doctors and the agitation on the ground and appreciate popular feelings.
The CBI took over the case immediately and has started its investigation. Meanwhile, the agitation has grown in size and depth. People from all walks of life have joined the agitation. Which means that the state and the people, both, are doing what is expected from them to do. So what was left for the Supreme Court to do? Nothing.
The top court probably felt that it should not be left out of the picture of this national awakening and action. It cannot be out of the frame when everyone is seen doing something. So it informed the nation that it was awake and watching, and would do something.
It showed its angst, it demonstrated its anger, it put the whole incident in the national context. It explained to the nation confused by its voluntary act of justice why it felt it necessary to act even when the high court was seized of the matter: “Why we decided to take suo motu though the Calcutta high court was hearing it because this is not just a case of a horrific murder in Kolkata hospital, but this is about the systemic issue about the safety of doctors across India,” it said.
Really? Was it a matter of the safety of doctors across India?
It is true that the doctors started agitating all over India thus turning in into an issue of their safety at their workplace. But as some women pointed out, it was about the safety of women and girls in public places. Before the lordships took their seats, news had already reached the nation that a nurse in a hospital in Moradabad had been sexually assaulted by a doctor. The cognitive faculty of the Supreme Court must have registered the news of minor girls having been sexually assaulted by their teacher in a school in Maharashtra. People were already agitating on the streets. A case of murder and suspected rape of a young woman in a village in Bihar was already in the headlines. And yet, our lordships felt that it was a matter of the safety of doctors only.
As we can see from only these examples, be it hospital, school, street or your village or mohalla, women are constantly under threat of violence of some kind. The highest court thundered that one cannot wait for another rape for things to change. What should be done to change things then? The Court did the most effective thing it could have done: “We are setting up a National Task Force, which will have doctors from diverse backgrounds who will suggest modalities to be followed all across India so that safety conditions of work are there and young or middle-aged doctors are safe in their work environment.”
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The court asked the West Bengal government not to trivialise the issue. It could not see that the court too was trivialising the issue, framing it wrongly. One can say that it got carried away by the noise of those who can speak.
What was also amusing and sad was that the court asked the West Bengal police to be sensitive while dealing with the protests as it was a moment of national catharsis in which people were participating. Can those who vandalised the hospital claim that what they were doing was in fact an act of catharsis? What is permissible catharsis?
In this country, assemblies are allowed, calling for annihilation of Muslims because they are not violent acts but “acts of national catharsis.” Houses of Muslims can be demolished by the state itself as it also helps the “national people” enjoy a moment of catharsis. Muslims can be lynched as it also creates a moment of catharsis for “national” people.
Was it to deliver this sermon that the top court spent a valuable morning session? One can say that this was more useless than the suo motu hearings in the times of COVID. When people were dying for oxygen, the Supreme Court was very disturbed and took suo motu cognisance of the situation, raising the expectation in the minds of the people that it would intervene to make the Union government act fast and justly in providing medical facilities for them. The court sat multiple times and formed a committee and then went back to usual business. The Union government continued with its arbitrary ways and people kept dying.
The seriousness of the suo motu cognisance jurisprudence must not be compromised. The Supreme Court has a duty to safeguard the constitutional rights of the people and the constitutional order of the state. It is duty-bound to act on its own when the state either violates the constitutional order or is seen as inactive while the rights of the people are being taken away. The constitutional court is then expected to rise to the occasion without being asked by the aggrieved, simply by being moved by the call of duty of ensuring justice and not by the temptation of being seen as part of the national moment.
Apoorvanand teaches Hindi at Delhi University.
