The point of this column is that the Supreme Court's resolve to be the sentinel on the qui vive will be tested again and again. The Court must not flinch from its duty, not ever.
V G Row was a barrister practising in the High Court of Madras. He was a left-leaning liberal. He had promoted the People’s Education Society to popularise useful knowledge in all sciences; political education; and art, literature and drama. The Constitution of India had come into force on January 26, 1950 and there was a great sense of freedom — especially of the freedoms guaranteed under Article 19 of the Constitution. One of the freedoms was the “right to form associations or unions”.
A very anti-communist state government of then Madras State passed an Order on March 10, 1950, declaring the People’s Education Society as an “unlawful association”. It did so by invoking the Indian Criminal Law Amendment Act, 1908 – repeat, the 1908 Act of a colonial era. The Act and the Order were challenged in the High Court. Realising that the Order was indefensible, on August 12, 1950, the state government brought amendments, ostensibly to ‘strengthen’ the provisions of the parent Act and to provide a ‘reasonable’ procedure, and applied the amendments to previous Orders by a legal fiction.
High duty of sentinel
The legal legerdemain did not succeed before the Full Bench of the High Court (Chief Justice Rajamannar and Justices Satyanarayana Rao and Viswanatha Sastri). The High Court struck down the Madras Amendments as well as the Order. Dismissing the appeal to the Supreme Court, Chief Justice Patanjali Sastri, speaking for a Constitution Bench of five judges, wrote:
“If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the ‘fundamental rights’ as to which this Court has been assigned the role of a sentinel on the qui vive.” (emphasis mine)
Over the years, the Supreme Court, like any other institution and like in any other country, stumbled on occasion, but quickly lifted itself, dusted the sand, and strode like a colossus. That is why courts (with all their deficiencies), and the Supreme Court in particular, are the institutions that enjoy the highest public confidence. I have written this long preamble to soften the criticism that the Supreme Court has attracted in two cases, yet undecided, of great importance to the rule of law in this country.
The first is the Demonetisation case. As everyone knows, on November 8, 2016, the Central government declared as illegal the Rs 1,000 and the Rs 500 currency notes. That single act set the Indian economy on a downward course. Beginning in the last quarter of 2017-18, the growth rate of GDP began to slide. That slide continued for seven successive quarters and would have touched a new low in the eighth quarter too (Jan-March 2020). Coronavirus struck India, and our attention was diverted. But, remember always, that the current economic crisis pre-dated the pandemic and the lockdown. Demonetisation was challenged in the Supreme Court and in several High Courts. On December 16, 2016, a Bench of three judges, led by Chief Justice
T S Thakur passed a detailed order. The Court admitted the Writ Petitions, framed nine important questions, withdrew all similar cases pending before the High Courts to itself, restrained any other Court from entertaining or deciding any case on Demonetisation and, having regard to the general public importance of the issues, directed that the matters be heard by a Constitution Bench of five judges. That is where the Demonetisation case stands in the last nearly four years.
The other is the case of Jammu & Kashmir and Article 370. On August 5, 2019, the President issued two Constitution Orders virtually repealing Article 370 and applying all the provisions of the Constitution to J&K. The consequential actions have caused a colossal upheaval: the special status enjoyed by J&K was abolished, the State was dismembered into two Union Territories, a total lockdown was imposed, the Legislative Council was abolished, the Legislative Assembly was dissolved, President’s Rule was continued and then replaced by Governor’s Rule, all statutory bodies including the State Human Rights Commission were dissolved, hundreds of political leaders and activists were detained (some including Ms Mehbooba Mufti and Mr Saifuddin Soz are still under detention without charges), domicile laws were drastically revised, and many rights, including media rights, are in a state of suspension.
By an Order dated March 2, 2020, a Constitution Bench led by Justice N V Ramana rejected certain preliminary objections and orally observed that the cases will be listed for hearing. Coronavirus intervened, and a nationwide lockdown was imposed on March 25. The cases have not been listed for hearing. On May 4, an order was passed in a separate matter relating to ban on Internet and 4G.
The point of this column is that the Supreme Court’s resolve to be the sentinel on the qui vive will be tested again and again. The Court must not flinch from its duty, not ever. Other issues of equal gravity have come up before the Courts in recent times, but since these are happening events, I shall reserve comment for another day. The fervent prayer of all citizens is that ‘May the superior courts of India always be alive and equal to the noble duty set by Chief Justice Patanjali Sastri.’