The absentee constitutional court

The absentee constitutional court

Updated on 13 September, 2019

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Unlike in 1976, the judiciary has not upheld the suspension of civil rights — instead, it has ducked, evaded and adjourned

  • “Ultimately, the object of depriving a few of their liberty for a temporary period has to be to give too many, the perennial fruits of freedom”. It was with these words that the SC held that the fundamental rights to life and liberty stood suspended during Indira Gandhi’s Emergency.
  • The court’s verdict — popularly known as the Habeas Corpus judgment — was based upon the principle of ‘executive supremacy’.
  • This principle holds that in ‘times of peril’, civil liberties must be subordinated to the interests of the state. The govt will decide:
    1. The ‘times of peril’
    2. Whose rights will be curtailed, and how?
    3. When will freedoms be restored?
    4. SC held that the judiciary was to ‘act on the presumption that powers of preventive detention are not being abused’.
  • The episode was a stark reminder of one basic principle: absolute power corrupts absolutely. Our republican Constitution is, therefore, based upon a system of checks and balances, where even the government must always be held accountable for its actions.
When these actions infringe fundamental rights, accountability must be sought in a court of law. In 2017, a chastened court formally overruled it. In its place, the court erected the principle of proportionality: if the state wants to infringe peoples’ rights in service of a larger goal, then it must demonstrate that the measures it is adopting bear some rational relationship with the goal. More importantly, it must show that rights are being infringed to the minimum possible extent. Habeas corpus in 2019
  • From August 5, 2019, the State of Jammu and Kashmir (J&K) has been placed under a ‘communications lockdown’. In addition, political leaders along with an unknown number of other individuals have been detained.
  • These moves followed the Centre’s decision to downgrade J&K’s ‘special status’ under Article 370 of the Constitution, and eventually convert it into two separate Union Territories.
  • Both moves violate crucial fundamental rights.
    • A communications shutdown violates the freedom of speech and expression, prevents those outside the State from being in touch with their families, provides cover for civil rights violations that cannot come to light, and finally, in this day and age, damages an entire infrastructure, of health, food, and transport, causing real suffering.
    • Detention self-evidently violates personal liberty.
  • More recently, National Security Adviser said that political leaders would remain in custody until ‘the environment is created for democracy to function’, and refused to say how long this would last.
  • A few days earlier, rights experts from the United Nations had called the communication lockdown a form of “collective punishment”, where, under the guise of ‘prevention’, an entire population’s rights were taken away for the actions of a few.
  • Collective punishment is an inherently disproportionate infringement of fundamental rights.
The silence of the courts
  • There are doubts about whether the constitutional requirement of proportionality is fulfilled. But even as the argument has raged in the public sphere — in newspapers, through interviews, and in the halls of the United Nations (the criticism by UN High Commissioner for Human Rights, being the latest) — there is one place where it has been conspicuously absent: the courts.
  • Unlike the Emergency, the courts have not upheld the government’s actions — so far.
  • What they have done is dodged, ducked, evaded, and adjourned.
  • Meanwhile, petitions challenging the lockdown have also been repeatedly adjourned (the first time with the court remarking that the govt should be ‘given some time’ — a striking echo of the habeas corpus case).
  • But under the constitutional scheme, no citizen needs a certificate of permission from a court to travel through the country. And, the court has refused to pronounce on the validity of the detentions themselves.
Unchallenged executive writ
  • Thus, by not ruling upon the cases before it, in effect, the courts have allowed the infringements of civil liberties to continue.
  • In India, in 2019, the people of Jammu and Kashmir have been silenced. But the Supreme Court has elected to silence itself. Amid the clash of arms, that is a tragedy in its own right.
Read More Articles: The Supreme Court – Why Judges Are So Private? Supreme Court Deadline On Judicial Vacancies


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