By Shuma Talukdar
The Principle of Separation of Powers and its natural extension “checks and balances” is an inherent feature of the constitution in most of the developed nations. In the USA, the principle is so integral that in 1933, the Congress in a desperate attempt to deal with the economic crisis armed the President with large discretionary powers. The Supreme Court intervened immediately and in Panama Refining Company v. Ryan held that this was an invalid delegation of legislative power to the executive. Again, in 1935, in Schechter v. United States the Supreme Court declared a part of the National Industrial Recovery Act void. The Act authorised the representatives of each industry to make codes of fair practices applicable to all members of the industry under the supervision of the President and empowered him to promulgate the codes as law. The court further added “We think, the court rule, that the code making authority thus conferred is an unconstitutional delegation of legislative authority.” In India too, the constitution empowered the court to rule, though we do not follow the principal of separation of powers as rigidly as the USA and Australia do, as expressed in the Indira Nehru Gandhi v. Raj Narayan. The Indian constitution empowered the Supreme Court with one of the most advanced powers, the power of judicial review to prevent tyranny and absolutism in the system.
For sampling, I have taken the three most prominent cases of 2019. In two of them, the Supreme Court clearly delayed the proceedings by ignoring the established legal principle of awarding justice without any delay, expressed in the saying: “justice delayed is justice denied.” The three cases mentioned above focus on Article 370, the Ayodhya dispute and Citizenship Amendment Act. Interestingly all three figure prominently in the BJP manifesto.
BJP in its manifesto under point 14, Nation First, talked about Article 370. It stated:
In the last five years, we have made all necessary efforts to ensure peace in Jammu and Kashmir through decisive actions and a firm policy. We are committed to overcome all obstacles that come in the way of development and provide adequate financial resources to all the religions of the state. We reiterate our position since the time of the Jan Sangh to the abrogation of Article 370.
We are committed to annulling Article 35A of the Constitution of India as the provision is discriminatory against non-permanent citizen and women of Jammu and Kashmir. We believe that Article 35A is an obstacle in the development of the state. We will take all steps to ensure a safe return of Kashmiri Pandits and we will provide financial assistance for the resettlement of Refugees from West Pakistan, Pakistan Occupied Jammu & Kashmir (POJK) and Chhamb.
Article 370 was revoked by official notification on August 5, 2019 by the Constitution (Application to Jammu and Kashmir) Order, 2019. A number of petitions were filed before the apex court, challenging the abrogation of Article 370 and the restrictions imposed on Jammu & Kashmir. While hearing the matter on September 30, the Supreme Court delayed it by stating “We do not have time to hear so many matters. We have a Constitution Bench case (Ayodhya dispute) to hear.” How an institution like the Supreme Court of India, with so much of constitutional obligations, give such a statement? Was facilitating the construction of a temple or mosque at the disputed site in Ayodhya more important for the Supreme Court, an institution expected to be secular, than what directly affected the lives of millions of people in Kashmir? Was the interest of a few groups of people more important than millions of people who were and still are suffering in Kashmir? Should it be considered as the discretion of the court or should it be seen as its insensitivity towards minorities, supporting the manifesto of the political party leading the current coalition government at the centre? The matter was further delayed by the constitutional bench when placed before it on October 1 by granting 28 days to the centre to reply on the petitions and November 14 was announced as the next date for hearing. On the other hand, the petitioners were asked to file a response to the reply within a week of filing of the reply by the government. Supreme Court also added that no further petition would be entertained under Article 370. This was in a situation when seven million people of the state are under severe restrictions.
The Ayodhya case finds mention in the BJP manifesto under Point 1: Cultural Heritage related to Ayodhya dispute, where the manifesto says, “We reiterate our stand on Ram Mandir. We will explore all possibilities within the framework of the Constitution and all necessary efforts to facilitate the expeditious construction of the Ram Temple in Ayodhya.”
While deciding upon the Ayodhya dispute the Supreme Court in its judgment stated, “During the pendency of the suits, the entire structure of the mosque was brought down in a calculated act of destroying a place of public worship. The Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago” (Para 798, Page 922). The court further admitted that allotment of alternate land to the Muslims is necessary as the Muslims were evicted of the mosque and further added wrong committed must be remedied. Article 142 of the Constitution empowers the Supreme Court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. The Court by exercising its power passed:
Justice would not prevail if the Court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law. The Constitution postulates the equality of all faiths. Tolerance and mutual co-existnce nourish the secular commitment of our nation and its people.” (Para 800, Page 923)
Accordingly, the Supreme Court ordered the disputed land to be handed over to a trust to build the temple and ordered the government to give 5 acres of land to Sunni Waqf Board to build a mosque.
The mosque was built in 1527 and was used by Muslims until December 22, 1949 when a group of 50 to 60 people kept an idol inside the mosque, clearly for disturbing public peace and tranquillity. It was further demolished in 1992. The destruction of the mosque took place in breach of the order of status quo and an assurance given to the Court. The damage to the mosque in 1934, its desecration in 1949 leading to the ouster of the Muslims and the eventual destruction on December 6, 1992 constituted a serious violation of the rule of law. Now where is justice in this judgement? Where is the clean hand doctrine? The obligation to approach the court with clean hands is an absolute obligation, which the Supreme Court has reiterated repeatedly in the past. The person seeking equity must do equity. Not just clean hands, but also clean mind, clean heart and clean objective, which are the equi-fundamentals of judicious litigation. In the Ayodha dispute the land was given to the party that actually did the entire illegal act, disturbed public peace and equanimity.
Amartya Sen in his The Idea of Justice (2009) while explaining why utilitarianism or system that only promotes welfare of majority or happiness of the greatest number referred to the ancient Indian jurisprudence, Matsya Nyaya (the Law of Fish), according to which the way the big fish devours the small fish cannot be considered justice. In the absence of the rule of law, the human society will degenerate into a state of anarchy, where the strong will destroy or exploit the weak just as the big fish eat the small fish. He further distinguished between niti and nyaya, for according to him niti is rule, whereas, nyaya is realisation. Niti, if implemented appropriately, considering both majority and minority, will ultimately lead to justice. If we look through the prism of Sen’s theory, we find that the court was right in recognising the rights of the minorities but definitely failed to give the right remedies.
Citizenship Amendment Act
Implementation of the Citizenship Amendment Act appears under Point 12, Nation First of the BJP manifesto:
We are committed to the enactment of the Citizenship Amendment Bill for the protection of religious minority community from the neighbouring countries escaping persecution. We will make all efforts to clarify the issues to the section of population from the North-eastern states who have expressed apprehensions regarding the legislation. We reiterate our commitment to protect the linguistic, culture and social identity of the people of Northeast. Hindus, Jains, Buddhists, Sikhs, and Christians escaping persecution from India’s neighbour countries will be given citizenship in India.
The Supreme Court on December 18, 2019 decided to examine the constitutional validity of the Citizenship Amendment Act (CAA), but refused to stay its operation and deferred the hearing for more than a month to January 22, 2020. Lawyers from Assam pleaded stay on the Act but the court refused to hear the argument stating that plea on Citizenship Amendment Act is not an emergent petition to be considered by the court. This is in a situation where already 5 people were reported dead and over 100 injured in the state. The fire that sparked in Assam had spread across the country. Just in UP 19 people were killed, more than 100 injured, 1,100 arrested for violence, 124 arrested just for their posts on social media at the last count, as reported by the NDTV. Irony is that on the one hand we do not want ourselves to be compared with countries like Pakistan and Bangladesh because of the intolerance there, and on the other hand we have ended up displaying almost the same level of intolerance. Just as countries in our immediate neighbourhood are not secular, we aspire to have a state religion, forgetting the fact that almost all developed countries, the ones that we should actually be drawing our inspiration from, are secular.
This is high time for the apex court to rise up and realise its constitutional obligations rather than just follow the manifesto of the political party leading the current coalition government at the centre. It should realise that it is the guardian of our constitution and the highest authority for protecting the rights and liberties of every individual in the country and for upholding the value of the rule of law.
Shuma Talukdar is a lawyer. She holds professional membership of the Supreme Court of India, the Bar Council of India, and the Department of Justice, Ministry of Law, Government of India. Views expressed here are the author’s own.
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