Pratap Bhanu Mehta is to be congratulated for his excellent article (‘Their Lordships and Masters’, IE, November 18: published in Janata Weekly last week under the title ‘SC was Never Perfect, But the Signs are That it Is Slipping into Judicial Barbarism’) and his forthright condemnation of the Supreme Court (SC) for what he aptly terms “judicial barbarism”. For judicial barbarism is what we have witnessed over the years, with tragic consequences for India’s citizens, its institutions and the survival of democracy itself.
The word barbarism is derived from “barbarous”, and its meaning is worth noting. “Barbarous” has been defined variously as being “uncivilised; wild; savage, crude” and “savagely cruel or harsh”. For example, “the prisoners of war were given barbarous treatment”.
Once we know the meaning of the word, we can appreciate the three senses in which Mehta uses the phrase “judicial barbarism” all the better for the conduct of its judges has indeed been savagely cruel and harsh, shorn of any vestige of a judicious temperament, let alone a manifestation of judicial independence in the face of a majoritarian, authoritarian executive. It has been singularly lacking in humanity, empathy, or concern for the fundamental rights and liberties of those citizens who dare to stand up against the executive and protest against its trampling of democratic rights.
The complicity of the SC, to which Mehta alludes when writing about democratic barbarism being “aided by judicial power”, is manifest in its recent actions and orders. More so in the cases in which the Court has deliberately refused to act in defence of citizens and groups who have been victimised for their protest and dissent, or who are only exercising their fundamental right of freedom of speech and expression. The list is a long and sordid one: Millions of migrants trapped by a thoughtless, heartless lockdown; the state of J&K deprived for months on end of the internet, the most essential means of communication today; the same state of J&K, where hundreds who were, and still are, illegally detained, invoked their right to habeas corpus in vain as the SC resolutely set its face against hearing these matters, thus ensuring that they continue to languish in illegal detention; the cases of Sudha Bharadwaj, Anand Teltumbde, Varavara Rao and the other victims of the Bhima-Koregaon incident, branded as “urban naxals”, though they are distinguished intellectuals, writers, poets, languishing in detention for months if not years, without bail, without their cases being heard and without the least care or concern for their age or rapidly deteriorating medical conditions; the even more shocking case of the 83-year-old Stan Swamy, suffering from Parkinson’s disease, whose plight does not move the Court to grant him a speedy hearing; the case of the journalist Siddique Kappan, detained on his way to Hathras as far back as in October.
There is one common thread running through all these cases — the concerned governments do not want these cases to be heard. It suits these governments if they languish for years on end. The history of these cases shows that the SC has been more than willing to oblige. That is the significance of the title of Mehta’s article, and that is why he refers to the Court’s complicity.
Equally disturbing is the hypocrisy, double standard and discriminatory treatment meted out to litigants — attributes that ill-suit any court, much less a constitutional court, but which now pervade the orders of the SC. On November 16, where the BJP-led UP government was concerned, the Chief Justice proclaimed in Kappan’s case that the Court seeks to discourage Article 32 petitions. The fact that Article 32 is a fundamental right seems to have eluded the Chief Justice — the same article to which B R Ambedkar accorded the highest importance. He also seems to have suffered from a bout of temporary amnesia for on November 6, it was perfectly legitimate for Arnab Goswami to invoke Article 32 against a show-cause notice issued by the Maharashtra Legislative Assembly. In fact, a letter addressed to Goswami by the Assistant Secretary claiming a breach of privilege prompted the Chief Justice to observe in open court, “No authority in the country can penalise somebody for coming to the Court! What is Article 32 for?”
While the Sudha Bharadwajs of this country languish for years in illegal detention, Goswami is released at lightning speed, with hollow, sanctimonious proclamations in defence of democracy, freedom of speech, and about the impermissibility of a person languishing in jail for a day longer than necessary. It is in this way that the SC uses its polyvocality to say and do one thing in one case, but to say and do nothing in so many others. Truly did George Orwell say: All animals are equal; but some animals are more equal than others. Mehta speaks of “creeping hues of a Weimar judiciary”. That is a damning indictment of the SC.
Mehta bemoans the acquiescence of the members of the Bar, with a few worthy exceptions who have not given up the good fight. He stops short of denouncing the Bar as a whole for complicity with the Supreme Court — a kindness that I am not sure we deserve. He is right to call out the legal profession, for in being supine and pusillanimous it has failed in its role of standing up to judges when necessary. But Mehta should know that there are a few more than those he suggests who have stood up and denounced erring judges, and in doing so signal to the public that they will not countenance judicial misconduct.
Speaking of the SC’s selectivity, Mehta says that claims to discourage the use of Article 32 is the “perfect metaphor,” demonstrating that the Supreme Court acts like there exists a state of Emergency even when there does not. Perhaps a better indicator of our collective despair lies in the fact that even an intellectual of Mehta’s stature seems to forget that Article 32 remains a constitutional refuge during a declared Emergency. If that is so, what is it that we are living through now?
(The writer is a senior advocate. Article courtesy: The Indian Express.)
