Check and balance

The new CJI must restore the standing of the SC

The tenures of three chief justices preceding N V Ramana, who took charge on April 24, had not done much to improve the Supreme Court’s standing in discharging its constitutional role as an independent check and balance to executive power. Correcting this would be Justice Ramana’s chief responsibility, and it will be no small challenge, given that he has only an 18-month tenure in which to do so. His predecessor’s legacy has made his task tougher. It is striking that while displaying extraordinary vigour in pursuing a contempt case against lawyer Prashant Bhushan, the Supreme Court did not address even one of the critical constitutional cases pending before it. All of these have critical consequences for the people of India, including the abrogation of Article 370 and splitting Jammu & Kashmir into Union Territories; the constitutional challenge to reservations for economically weaker sections; the Aadhaar Act and a judicial review of Money Bills. A fifth, on the Citizenship Amendment Act (CAA), is also awaiting a hearing.

These delays have done much to undermine people’s confidence in the Supreme Court as the civil rights protector of last resort. Detention of thousands of Kashmiris was challenged through the most fundamental constitutional protection — a habeas corpus writ petition — but the higher judiciary, led by the Supreme Court, kept delaying its adjudication. The delay in hearing the constitutional challenge to Article 370 has, in effect, converted the abrogation of Jammu & Kashmir’s status into a “fact on the ground”, a situation that also obtains for the Aadhaar Act and the Lok Sabha Speaker’s capacious interpretation of a Money Bill, which was the basis on which the Aadhaar legislation was passed without requiring Rajya Sabha approval. As for the challenge to the CAA, the statement that the court would consider the case when the violence had died down was a model of inverted logic.

The protests were the result of a law of questionable constitutionality and it was the state that had perpetrated the violence against protesting students. The same logic was applied to the case of electoral bonds, which a three-judge Bench declined to stay on grounds that they had been in use since 2018 — a statement that overlooked the fact that two other CJIs had not taken up the matter. The court’s statement that people could check corporate financial statements to find out which company had made political donations is a reflection of a disregard for citizens’ right to know in the context of elections.

Indeed, sensitivity to people’ rights is an issue that Justice Ramana may need to address on a priority basis. The Supreme Court has dismissed five petitions to help migrant workers, buying the government’s argument that there was no large-scale displacement and dismissing the payment of wages to migrants in shelters on grounds that they were getting food anyway. At the same time some citizens were considered more equal than others. So where the bail plea of journalist Arnab Goswami was listed within a day of its filing, a habeas corpus petition by Siddique Kappan, a Kerala journalist who was arrested under the Unlawful Activities (Prevention) Act en route to Hathras to cover the rape of a Dalit teenager, was adjourned by four weeks. Justice Ramana is known to go by the book. In the light of the past instances, even that holds out hope.