The Constitutional Drift: ‘Coincidence Does Not Happen a Third Time’
I don’t like, or trust, coincidences and believe there is no such thing as a coincidence if something happens again and again.. In fact, I’m one with the Japanese cartoonist Osama Tezuka when he says: “Coincidence doesn’t happen a third time.”
This thought is clarified even further by Ian Fleming: “Once is happenstance, twice is coincidence, three times is enemy action.”
Okay, maybe not enemy action when it comes to India’s superior judiciary, but certainly a disturbing pattern which merits a slightly more detailed response than the customary ” Oh, shit!” which the morning papers usually evoke these days.
Was Friday the 24th of June, 2022, a day of coincidences?
I ask because on this day the Supreme Courts of the world’s two largest democracies gave two judgments that are an assault on human rights, individual choice and freedom and, in the words of an eminent lawyer, have “stood the Constitution on its head.”
On this black day SCOTUS (Supreme Court of the United States) decreed that women did not have a fundamental right to abortion and that it could therefore be declared illegal.
The same day our own Supreme Court created constitutional and juridical history by declaring a petitioner (in a case in which more than a thousand people were murdered) as a conniving accused and practically ordering her to be arrested, which an ever obliging Gujarat police did the very next day.
The problem, however, is not with just these two judgments, fatal as they are to human rights and democracy. The real danger is that these rulings may not be just coincidences but portents of a radical ideological change, part of a pattern of illiberalism which began with Trump in the USA and with the NDA in 2014 in India.
That they are not isolated, stand alone rulings but only the latest in a chain of similar rulings. That they are indicative of the fact that it is not just political governments that are swinging to the extreme right across the world, but also their judicial organs. Actually, “extreme right” is a euphemism- the swing is towards majoritarianism, revisionism and absolutism.
Take the USA first. Jurists there are worried that, ever since Trump packed SCOTUS with right wing ” conservatives” the court has veered more and more to the right and is becoming anti-liberal. In two previous judgments it has diluted the Voting Rights Act, disenfranchising hundreds of thousand of voters; just recently it has struck down a gun control law that mandated stricter background checks. Overturning Roe Vs Wade on the 24th of June was the third strike that Tezuka was speaking about. The pattern is all too clear, and enlightened citizens are worried that other hard-won individual rights could be next on the block: access to contraception, gay rights, same sex marriage. There are no coincidences here, just subjective biases of judges parading as law.
We in India are in an even worse place because at least in the USA the government of the day and SCOTUS differ with each other on these matters, but in India the two appear to be on the same page, a “double engine” in current parlance, taking us to stations not envisaged in our liberal Constitution.
The 24th June ruling on Teesta Setalvad, as with the SCOTUS rulings mentioned, is no coincidence. It was a cluster bomb waiting to happen. It has been preceded by other controversial judgments.
It is an unconscionable judgment and deserves the criticism it has attracted from former judges, eminent lawyers, international organisations and civil society. I will not go into the merits of the dismissal of Zakia Jafri’s petition because many others more qualified than me have done so, and find this even puzzling . What concerns me as a member of India’s civil society ( or what remains of it) is the fact that a constitutional institution which was created to provide justice has now taken upon itself the job of lodging FIRs against a petitioner seeking justice !
By stating that Setalvad and “all those involved in such abuse of process need to be in the dock and proceeded with in accordance with law” the Court has provided a handle to the government to continue its vendetta against her.
How can any assistance to an 82 year old petitioner, whose husband was murdered and who has been waging a lone battle against an all-powerful government for 20 years, be termed an abuse of process or a conspiracy?
How could the Court have forgotten that, in its own earlier judgments related to the Gujarat riots, it had found that it was the executive which was indulging in abuse of process and had consequently transferred hundreds of cases out of the state?
Did it not recollect calling the then rulers of Gujarat as “modern day Nero’s”?
That it was this same Court, distrusting the state govt’s intentions, which had ordered the setting up of an SIT?
That it was this same Teesta Setalvad and other human rights activists like her who had ensured that Bilkis Bano received justice after struggling for 15 long years?
That it was her efforts, and not those of the Gujarat government, which had resulted in dozens of convictions, including that of a Cabinet Minister of the then state government?
Surely, Setalvad’s credentials deserved some consideration?
The entire history of the 2002 carnage and its aftermath throws up one irrefutable lesson: that even the limited justice delivered so far would not have been possible without the unremitting efforts of human rights activists, workers and campaigners. And yet, the Court has now termed them as conspirators with “ulterior designs” whose only aim is “to keep the pot boiling”, and has ordered that they be punished.
This travesty of the judicial spirit, this telling the state to arrest an individual who has dared to challenge it, has been described by the noted lawyer and legal scholar, Gautam Bhatia, as a “constitutional innovation.”
As Anand Yagnik, a senior Advocate from Gujarat, says in a quote to the Wire: “The order is constitutionally, ethically and legally improper.” The Court has exceeded its jurisdiction, there was no reason for it to have gone beyond dismissal of the petition, judges should exercise restraint given the import of every word that they utter.
This need for caution has been very well expressed by the Chief Justice of the US Supreme Court, John Roberts: “If it is not necessary to do more to dispose of a case, then it is necessary not to do more.”
If the intention of the Court was to effect the arrest of Teesta Setalvad, then, as ( retired) Justice Madan Lokur told Karan Thapar in an interview- “Heaven help us!”
This judgment confirms my point, given the other rulings in the recent past, that our courts are becoming less liberal, are averse to taking on the executive, and are interpreting the Constitution in ways not seen before. They are moving to the ideological and political right, and it is no consolation that the same thing is happening in many other democracies including the USA and the UK ( the approval to extradite Assange to the USA).
It is not only the Indian landmass that is drifting towards doomsday – our Constitutional drift to the right can do more damage in the long run than the Continental drift.
(Avay Shukla is retired from the Indian Administrative Service. Courtesy: The Citizen.)
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Zakia Jafri Case: Can Rule of Law Survive if We Crush Those Fighting for It?
Sanjoy Ghose
“It is necessary for us all, the citizens of the world, to work tirelessly to sustain and further the liberty, freedom and democracy our forefathers have fought for.”
– Chief Justice NV Ramana at Independence Hall, Philadelphia, summer of 2022.
Justice Ramana is set to retire shortly. His exhortation to citizens to dedicate themselves to the cause of liberty ironically comes at a time when persons perceived by a large section of civil society to be doing exactly what is asked of citizens by the Chief Justice – defending “liberty, freedom and democracy” – have faced judicial strictures and sudden arrests.
Ehsan Jafri, a former legislator, was burnt to death during the Gujarat riots of 2002 as his pleas for state assistance fell on deaf ears. A three-judge bench of the Supreme Court, in Zakia Ahsan Jafri v State of Gujarat, while turning down the demand for an investigation by his widow, Zakia Jafri, made observations to the effect that persons who were alleged whistleblowers of the complicity of the highest decision-makers in the state government and those who were advocating action against such persons and assisting Jafri in her quest to seek justice for her husband were, in fact, “involved” in “abuse of process” and needed to be “in the dock and proceeded with in accordance with law”.
When the Cost of Defending Democracy is Punishment
Within hours of the judgment, which finally placed a judicial imprimatur on the ‘clean chit’ given to the then-head of the state government, the Gujarat police, with astonishing efficiency, lodged a detailed First Information Report (FIR) against the activists and alleged whistleblowers in the administration, referring to the court’s observations on putting them “in the dock” and proceeded to arrest them.
Interestingly, the complainant is not any of the persons against whom allegedly the widow, activists or the alleged whistleblowers had, in the words of the top court, kept the “pot boiling” – it is the Crime Branch Police Inspector of Ahmedabad city.
One must appreciate the efficiency of the chap to have distilled the 450-page court decision within hours and to have reduced it into an FIR running into 10 pages lodged and actioned upon with a team landing up at Teesta Setalvad’s Mumbai residence, to arrest her even before the ink had dried on the judgment signed by three justices, whose authorship remains undisclosed.
I write not in support of these figures. They have able advocates for their causes. Their sudden perceived victimisation has aroused a passionate defence by civil society. What is of concern though is the impact such synchronicity has on the already battered image of India’s judiciary and the chilling effect it would have on people taking up Justice Ramana’s plea to serve as defenders of “liberty, freedom and democracy”.
The Chilling Effect of the Court’s Actions
The Zakia Jafri case arose in the context of requiring a criminal investigation into the alleged complicity of high state functionaries in the Gujarat riots of 2002. The Supreme Court had constituted a Special Investigation Team (SIT), which had concluded that no complicity could be established. Its “closure” report had been accepted by the magistrate. The same was challenged unsuccessfully all the way to the top court.
The judgment refers to the “gumption” of the widow and the other disgruntled lot (para 79) and their “audacity” (para 88) to level allegations that were found to be false by the SIT after thoroughly examining them. I personally am aghast to find the inclusion of such terms in the lexicon of a constitutional court committed to safeguarding the rule of law in a democracy.
The indisputable fact is that a widow lost her husband. The widow had moved the court system seeking an investigation into the role of persons who were charged with the protection of her husband’s life and liberty. In the process, she had been aided and assisted by an ‘activist’. The suggestion of the state of Gujarat to the top court was that she was “influenced” by Setalvad into demanding an investigation.
The Supreme Court was examining whether the criminal court was justified in accepting the “closure” report of the SIT. Till the court gave its decision, no complaint had been filed against the complainant or those who were assisting her, charging them with forgery or any of the wrongdoings that now find a mention in the FIR.
The incidents, as the Supreme Court itself has observed, happened over a decade back. In such circumstances, the vehemence of the court in concluding, as it did in paragraph 88 of its judgment, that persons assisting the widow should be ‘put in the dock’, is inexplicable. The action of the executive in arresting and imprisoning within hours of the judgment those who were ‘assisting’ the widow only fortifies the fear of many that the approach of the court shall have a “chilling effect” on persons accessing the justice system to remedy what they perceive as injustice.
An Example from Matrimonial Law
Conceded that persons must be discouraged from levelling false allegations, more so when the persons concerned occupy high constitutional offices. However, a greater public interest would have been served if the court had restrained itself from giving unsolicited advice to the executive on acting against citizens. After all, it was only examining an investigation report, and that, too, which had already been actioned upon by the concerned court. The magistrate, who had the same report before him, had not felt the need to put those assisting the widow “in the dock”.
Having practised matrimonial law for years, let me explain this using a metaphor from this domain.
Many women who file criminal cases of cruelty against their husbands ultimately either abandon them or such cases end in acquittal. This has led to a widespread belief – at times even judges have voiced this in judgments – that women “abuse” or “misuse” the system.
However, the reality is that there are many reasons why women abandon or lose such criminal proceedings. The backbreaking nature of the justice system, the unequal economic power of the spouses and the social pressure to settle and move on are some of the reasons behind the phenomenon. Now, if a court were to say that such a woman should be “put in the dock” for having the audacity to have preferred a criminal charge against her husband, which on investigation and/or trial has been found not substantiated, it would deter women from coming forward to access the law. They would choose to silently suffer abuse and domestic violence.
The Legacy of Chief Justice Sikri
Politicians in public life have broad shoulders. They have all the resources and the might to fight allegations against them legally as well as politically. The last thing they need is for courts to serve as their cheerleaders.
On the other hand, citizens are vulnerable. If they have to be motivated to serve as soldiers in the battle to protect freedom and liberty, as the Chief Justice has desired, then it is imperative that the judiciary is never perceived as being inimical to those who actually dare to “speak truth to power”.
It is time for judges to walk the talk from the seminar room to the courtroom. The time has come for the Court to instil “gumption” in every citizen to have the “audacity” to be that little boy who called out the Emperor for wearing no clothes. If to secure this end the court has to err on the side of restraint and leave it to the executive and politicians to fight their own battles, then so be it! Condemning an activist, howsoever tainted he/she may be, and calling for action against him/her is to silence thousands of others who might actually be fighting the good fight.
This judgment and its call to action has done irreparable damage to the idea of “citizen warriors” so wonderfully propounded by the Chief Justice!
I started by quoting this sage wisdom shared by Justice Ramana on his latest foreign tour. Most retiring Chief Justices wind up their tenures by attending to those pending foreign tour invites. This tradition goes way back in time. Even Sarva Mitra Sikri, the Chief Justice who presided over the Keshavananda Bharati Case, was stressed as he had to steer 13 judges to a verdict in between his pending foreign tour and impending retirement. The verdict, which gave India her Basic Structure Doctrine, was delivered on the day the Chief Justice demitted office. Chief Justice Sikri is remembered to this day for that. So, Justice Ramana, how would you wish posterity to remember you?
(The author is a senior advocate practising in the High Court of Delhi and in the Supreme Court of India. Courtesy: The Quint.)
