A Supreme Court–Blind, Deaf and Dumb?

Sumanta Banerjee

[Following is a shortened version of an article originally published in countercurrents.org]

The honourable judges of the apex court are expected to take a stand according to the principles laid down by the Constitution, and deliver justice as fast as possible to the victims of these unjust laws. Do they remember the dictum: “Justice delayed is justice denied”? Yet the performance of the Supreme Court benches during the last several years can be described as “justice delayed”.

Justice is represented by the familiar figure of a woman with her eyes blindfolded and a pair of balancing scales hanging from her hands—a statue which one often finds in the precincts of some courts. The blindfold is a symbol of the impartiality of the judges who are required to be blind to wealth, power or other privileges that the accused may enjoy, when delivering their judgments. The hanging scales imply that both sides in a dispute need to be looked at and heard to, and their arguments should be weighed in a fair way to deliver justice.

Sadly enough, Indian judges, starting from the district court level at the bottom, up through the state high courts and finally at the apex, have betrayed the statue of Justice. More than often, the judges lift their blindfold to wink at cases of injustice, and weigh the scales in favour of the powerful. That apart, they also appear to be deaf when hearing pleas by human rights activists, and remain dumb by adjourning or reserving judgments on these pleas.

Citizens look up at the Supreme Court as their final destination for justice, after their long tortuous journey through the cumbersome rigmarole of the labyrinthine Indian legal system. But even after reaching its doorsteps, they often find themselves denied justice.

Here are a few recent cases where some of the honourable judges of the Supreme Court should indeed face `allegations’—the term used by Justice Chandrachud to disparagingly dismiss public complaints against them. Most of these complaints relate to the inordinate delay by them in delivering justice on major issues that affect the rights of citizens. Since 2019, they have been sitting over multiple petitions submitted to them by individuals as well as human rights groups challenging the enactment and implementation of the UAPA (Unlawful Activities Prevention Act) which, they have contended, violates the constitutional rights of citizens. Recently, a group of retired civil servants also came out with a statement opposing the law. Under this draconian law, hundreds of people have been arrested and are languishing in jails. Till now, the Supreme Court has remained deaf to these petitions.

To take another instance, on August 28, 2019, the Supreme Court promised that its five-member Constitutional Bench would examine a batch of pleas challenging the Centre’s decision to change the constitutional status of Jammu and Kashmir. The matter was listed before the Constitutional Bench headed by the then Chief Justice, S A Bobde on March 2, 2020. Two years have passed, and people have not yet heard from the judges. Meanwhile, in Kashmir Valley, the Centre’s decision to abrogate Article 370 (which provided certain protective rights to its residents) has generated popular unrest, threatening to explode into yet another bout of violence.

The next instance is the case over the Citizenship (Amendment) Act of December 11, 2019. Several individuals and citizens’ groups have challenged the Act, on grounds of discrimination against Muslims. Some 143 petitions questioning its constitutionality have been submitted to the Supreme Court. Till now, there has been no response to those petitions by the apex court.

Apart from all these petitions in response to which the Supreme Court has remained deaf and dumb over the last couple of years, there are other equally important petitions which are pending before it. One such batch of pleas consists of petitions filed by the CPI(M), and civil liberties groups like Common Cause and Association for Democratic Reforms, challenging the Union government’s electoral bond scheme of 2017, alleging that it was “an obscure funding system which is unchecked by any authority.” The apex court is still sitting silent on this urgent matter which involves the issue of procedures that need to be followed to ensure a fair election.

The Supreme Court even refuses to consider petitions relating to the fundamental right to shelter of common citizens, as evident from its recent rejection of a PIL (Public Interest Litigation) filed by the CPI(M) challenging the South Delhi Municipal Corporation’s planned anti-encroachment drive in Shaheen Bagh on May 9 and 13. The judges admonished the petitioner saying: “Do not …come on behalf of a political party.” What a strange argument ! Does it mean that a political party has no right to take up the cause of citizens and approach the courts ?

The other face of the Supreme Court—breathtaking leniency towards petitioners who come from a majoritarian religious-political background.

In contrast to the above mentioned cases of the apex court’s delay in pronouncing its judgments, and refusal to entertain PILs relating to civil liberties, there are other cases where its honourable judges, at the drop of a hat, grant bail to those belonging to a Hindu communal group, or are ready to accept pleas from such a group of petitioners.

The classic example is the Supreme Court’s November 9, 2019 verdict on the plea by Hindu religious groups, backed by the ruling BJP party, to build a Ram temple on the site of the destroyed Babri Masjid. The apex court judges, while criticising the destruction of the Babri Masjid, yet granted the vandals who destroyed it the right to build a Ram Mandir on the site.

This verdict appears to have set a precedent for the Supreme Court judges, who are inclined to deliver judgments in accordance with the spirit of that verdict. In other words, they tend to be soft towards crimes committed by these Hindu religious groups (patronised by the ruling BJP), and readily accept their petitions and grant verdicts in their favour.

To give an example of leniency to criminals, on May 17, 2022 a Supreme Court bench comprising judges Ajay Rastogi and Vikram Nath granted bail to Jitendra Narayan Tyagi. He was accused of delivering a hate speech against Muslims at the Dharma Sansad (organised by Hindu religious groups) at Haridwar in December 2021. The judges granted him bail on medical grounds—without specifying what ailments he was suffering from that required urgent medical treatment.

In sharp contrast to this relief given to this Hindutva champion of anti-Muslim hatred, the judiciary has been totally blind to the fate of G N Sai Baba, a former professor of Delhi University, who is wheel - chair bound and has been languishing in Nagpur Central Jail for the last five years, although medically certified as a ninety percent physically disabled person. His fault—as a civil rights activist he had taken up cases of injustice against the poor. He was first arrested in 2014 on the allegation that he had links with Maoists. He enjoyed a brief respite, when the then Supreme Court bench of judges granted him bail in 2016. But he was re-arrested in 2017, and sentenced to life imprisonment. Ever since then he has remained incarcerated in the notorious `anda cell’ (an egg-shaped confined space) in Nagpur Central Jail for the last five years. Even after the UN Human Rights Special Rapporteurs team came out with a report in June 2018, urging the Indian government to redress his grievances, the Supreme Court remains a deaf and dumb witness to his sufferings, although its judges have the suo motu power to intervene and hear his case.

On the other hand, to give an example of the Supreme Court’s willingness to admit pleas by the Hindutva groups—in March 2021, it admitted a petition by the BJP spokesperson Ashwini Upadhyay challenging the constitutionality of the 1991 Places of Worship Act. This Act guarantees the maintenance of the religious status of any place of worship as it was on August 15, 1947—the day of India’s Independence. It made an exception only in the case of what it called the 'disputed structure' of Ayodhya, in other words the Babri Masjid, where the Act would not apply. It should be recalled that the Act was enacted at a time when the Sangh Parivar-led movement for the demolition of the Babri Masjid was gaining momentum through the murderous Ratha Yatra led by Advani. The decision to exempt the mosque from the purview of the Act was a concession by the then Congress government to assuage the feelings of the Hindus that were roused by the Ratha Yatra. This concession actually paved the way for the demolition of the mosque in 1992.

After all these years, now by admitting Ashwini Upadhyay’s petition challenging the Act, the Supreme Court is indirectly encouraging the Sangh Parivar to reinforce its old claim on the sites of mosques in Mathura and Varanasi. It has opened up a can of worms, with more such petitions being submitted by the Sangh Parivar demanding excavation of sites like Qutub Minar and Taj Mahal, claiming that they were built upon the ruins of Hindu temples destroyed by Muslim rulers.

The Supreme Court has already conceded to the demands of the Sangh Parivar by allowing the inspection of the premises of the Gyanvapi mosque by a survey commission, whose findings have been mired in controversies, leading to the dismissal of its head. The survey commission has not yet published its report, but according to leaked information, it is supposed to have discovered a stone image in the pond of the mosque that it claims to be a `shiva linga,’ but which is described by the clerics of the mosque as a fountain which provides water for the devotees to wash their hands and feet before going for their prayers. The Supreme Court, instead of releasing the report in public, examining it and taking a firm decision on the issue, is dilly-dallying by shifting the case to the district judge.

The record of the performance of these lower court judges at the district level and session’s court is far from satisfactory. Most of them are ill-educated in jurisprudence, and pass judgments which are finally dismissed by higher courts—only after time-consuming appeals. The latest example of such miscarriage of justice by the lower courts is the case relating to Aryan Khan, who was hauled up by the NCB (Narcotics Control Bureau) on the charge of possession of drugs, in October last year. He had to spend 27 days behind bars, during which time his appeal for bail was rejected twice—first by a magistrate’s court, and next by a session’s court. The Bombay High Court finally granted him bail. Now after seven months of mental torture that Aryan Khan had to undergo, the Narcotics Control Bureau has admitted its mistake in accusing him, and declared him innocent.

Given this atrocious record of the lower courts (which sentenced an innocent person to imprisonment merely on the basis of a report by NCB without thoroughly examining it), why has the Supreme Court placed trust in another lower court by shoving off the Gyanvapi mosque case to a Varanasi district court judge ?

While talking about the declining level of juridical functioning in the lower courts, one cannot also ignore a similar trend of decline in the professional integrity of some of the judges of the Supreme Court.

The present Chief Justice of the Supreme Court, N V Ramana delivers impressive speeches in public fora, criticising the sedition law, and stressing the need for delivering justice to the common people. But within the precincts of his court, he allows the worst forms of injustice by his colleagues—as evident from the cases narrated above. Such judgments that deny justice to the common people are not exceptions, but rather follow a universal pattern of ignoring the human rights of political dissidents and of subservience to the Hindu majoritarian demands.

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Frontier
Vol 54, No. 50, Jun 12 - 18, 2022