A.P. Shah, 4 May 2020

Many instances in recent times suggest that the freedoms we take for granted may be on unsteady ground. We are made to doubt whether the Supreme Court can actually protect our rights at all or not. In the past few months, the Supreme Court’s priorities also do not appear to be aligned to issues that need resolution. For example, the Citizenship (Amendment) Act cases were put off; as also the electoral bonds case, where over 6,000 crore rupees were received, which surely ought to be of concern to every democratic agency.

As far back as 1952, in State of Madras v VG Row, the Supreme Court assumed for itself the role of sentinel qui vive (ever alert – ed.), in defence of citizens’ fundamental rights. But today, is the sentinel, as the refrain goes, on the qui vive at all? This is why I choose to focus on the Supreme Court and its actions in times of crises generally, covering not just the current COVID-19 pandemic but also some time before it.

The Roman statesman, lawyer and philosopher Cicero is believed to have famously said, “Inter arma enim silent lēgēs” – In times of war, the law falls silent. But this statement has been consistently rejected, time and again, in the modern era, at least. Most well-known is the dissent of Lord Atkin in Liversidge v Anderson (1942), where he said “In [Britain], amid the clash of arms, the laws are not silent.”

Justice H.R. Khanna reminded us of the same sentiment a few decades later, in his memorable dissent in ADM Jabalpur, when he said:

“experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent …  [the] greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of law.”

Upendra Baxi echoes this feeling too, when he says that today, we need “a full-throated repudiation” of Cicero’s maxim.

Why is all this relevant? While we may not be at war in the conventional sense, we are in an unprecedented state of emergency, of a kind we’ve not seen before. Naturally, the burning question is the role of the arms of the state at such times, and how much unfettered authority the executive should have, without interference or monitoring from the judiciary or the legislature. This has prompted debate not just in political or policy circles, but also amongst the legal community.

Two polar opposite views emerge from among practicing lawyers. Dushyant Dave suggests “only the executive is attempting to perform its function. Parliament is in recess. The judiciary is in a state of coma”. He then asks why “parliament and judiciary are totally silent on the present suffering of hundreds of millions of citizens”.

Harish Salve, on the other hand, suggests that “executive discretion in … governance that are politically and socially neutral, in… emergency, cannot be subject to judicial interference,” and that “courts have shown remarkable deference to the executive in [cases] brought by interest groups [championing] the rights of those… forgotten by the system.”

Neither Dave nor Salve directly mentions a specific case, but we recognise the unsubtle reference to the Supreme Court petitions on the plight of migrant labourers. I will discuss this petition, as also one related to the wholly unwarranted Islamophobic turn that the public health crisis has taken in our country.

The Supreme Court and migrant workers

With the sudden lockdown beginning on March 25, 2020, India has seen lakhs, maybe crores, of migrant workers – who have travelled across the country in search of work, food and shelter – lose livelihoods, income, security, and dignity. All this happened in just about a month. Many of them would not have imagined that they would be left to starve, without access to food, shelter or transportation for an uncertain period.

All this came to a head with a PIL filed in the Supreme Court on April 1, asking the state to pay minimum wages to migrant workers. The petition argued that the national lockdown declared under the National Disaster Management Act had deprived migrant workers of their right to livelihood under Article 21 of the constitution. The Supreme Court’s observations during the hearing were especially disappointing: it said that it was unwilling to “interfere … for the next few days”, and that this was a matter of government policy, which the court could not encroach upon. The bench even asked “why wages are required when meals are being provided by the government?”

As constitutional scholar Gautam Bhatia points out, state action is the direct cause of the loss of livelihood of migrant workers. The lockdown shut off all access to resources and movement. Migrant workers – who number more than 40 million across India –  were the first and worst affected. The lockdown may well be a policy decision, but this policy decision has infringed upon the right to livelihood of migrant labourers enshrined in Article 21. By corollary, the judiciary is duty-bound to examine the actions of the state, and hold it up against constitutional standards.

The right to livelihood is also not a new issue for the Indian judiciary. The Supreme Court has time and again observed that the “right to life does not merely include an ‘animal existence’, but a life with dignity.” In the situation faced by migrant labourers today, many questions can be asked: Could special transport be arranged to ensure that they get home safely? Can they go home at all? Can they be given some kind of a stipend or sustenance allowance until the lockdown is lifted and work resumes? The court is fully capable of addressing these questions, but does not seem to care to ask them, let alone address larger constitutional issues of  reasonableness and proportionality.

For the privileged among us, there is a huge disconnect between what we consider important and irrelevant to living a life of dignity for ourselves and for those who are less privileged. The Supreme Court’s observations highlighted this disconnect starkly. It seems to think that migrant labourers do not need money for anything other than food. They do not fall sick. They do not have family members back in their villages who might need the monthly stipend that they send to survive. There is also the troubling presumption on the part of the court that the government is making the best decisions in these times.

I agree with the analyst Suhas Palshikar when he says “the lockdown will prove to be a most dangerous experiment in our democracy.” This issue of migrant labourers is only one way in which the lockdown has cracked open our democracy’s fissures wider than ever before, especially with regard to class and privilege. The middle class was easily swept away by the lockdown declaration because it is too self-centred and self-serving to think beyond itself. We have paid our domestic help, we are giving business to our local grocer, but that’s all that matters. These individual, disaggregated acts of philanthropy are but a temporary salve to our conscience. We forget the reality of the world beyond as we complain about the low bandwidth on that streaming service which prevents us from watching our favourite serial.

Here, the glory days of the Indian judiciary come to mind, when the question of the right to work, and livelihood came up in the Olga Tellis and Asiad Workers cases. In the former case, the then all-powerful chief minister of Maharashtra, A.R. Antulay decided to deport all pavement dwellers and homeless persons out of Bombay. Justice Bakhtawar Lentin, of the Bombay High Court, himself went into the streets to understand the plight of these people, refusing to accept the government’s claims, in the face of vehement opposition from the executive. This judiciary was willing to hold its own against a powerful government, and stand up for what it believed was right. Now, I wonder where that judiciary has gone.

I am reminded also of the powerful and poignant poem, The Bread of the People, by Bertolt Brecht, who wrote,

“As daily bread is necessary

So is daily justice.

It is even necessary several times a day.

From morning till night, at work, enjoying oneself.

At work which is an enjoyment.

In hard times and in happy times

The people requires the plentiful, wholesome

Daily bread of justice.

Since the bread of justice, then, is so important

Who, friends, shall bake it?”

Who, indeed, shall bake the bread of justice?

Islamophobia during the pandemic

The next issue I would like to touch upon is that of the peculiar communalisation of the pandemic that has occurred here. My personal experience, based on conversations with close friends and acquaintances, has particularly caused me great anguish. A few of my friends, mostly Hindu, whom I regard otherwise as rational, truly believe that a conspiracy by the Muslims is afoot. Notably, a former colleague from the Madras high court said that many cases in Chennai were related to the Tablighi Jamaat incident, and that the patients were being protected by the police. I asked this friend, “So, what should be done? Should they be thrown in jail? Or deported from the country for falling ill?” My friend was very apologetic thereafter, but this story is revelatory of the sentiment of many today.

What exactly happened? A large gathering was held in New Delhi. Some ill attendees infected others, who, when they went home, affected several others and so on. This got picked up with rabid excitement by communal forces because the gathering was conducted by a Muslim sect, the Tablighi Jamaat. But any reasonable person would recognise that this same outcome would have been obtained from any large gathering anywhere in the country for any occasion: a festival, a townhall meeting, a wedding, a funeral. It was dint of circumstance that it was an event organised by a Muslim group. Nothing justifies the utterly ridiculous response it continues to receive in India today.

I do not defend the gathering in any way. Indeed, no large gathering should have taken place in times like these, anywhere. But this meeting received permission from the Central and state governments, who did not stop it in any way. Similar gatherings were held in Hindu temples in Gujarat and Sikh gatherings in Punjab. The popular Hindu pilgrimage spot, Tirupati, was closed only on March 20. None of these, equally high-risk, received the same scrutiny in the press or by officialdom.

More problematic is the policy response to the Tablighi Jamaat meeting. It has led to a skew in the data on the public health situation. Some statisticians suggest that most COVID-19 cases tested in the early days were from the Tablighi Jamaat; as a result, the majority of identified cases were also linked to the gathering. This led to a hate hashtags like #CoronaJihad, #BioJihad and #TablighiJamaatVirus, besides actual physical violence against Muslims, with calls to boycott Muslims as the ones ‘spreading this disease’.

This reaction also contravenes the World Health Organisation’s advisory of April 6 that “countries should not profile [COVID-19] cases in terms of religion or any other criteria”, asking “governments not to politicise the issue and stop profiling people on religious basis.” The advisory also requested people to “never spread names or identity of those affected or under quarantine or their locality on … social media”.

As Harsh Mander points out, this mutation of “a national lockdown into a conspiracy by Indian Muslims to infect and kill non-Muslims, is a stunning accomplishment of right-wing communication and mobilisation.”

A petition was moved before the Supreme Court against the communalisation of the virus on television as well as on social media. The only curious response of the Supreme Court was that, if it was a question of killing or defamation, “then your remedy is somewhere else”; but, “if it’s a question of larger reporting, then the Press Council of India has to be made party”. The Supreme Court’s response is wholly inadequate, (especially since the PCI remit does not extend to television – a fact the council was constrained to reiterate the next day). However, even one observation from the Supreme Court condemning such irrational and unjustified behaviour would have had a sobering effect on media in the country.

The prime minister has only now started to say some things to counter the situation, but the damage, I fear, has already been done. With members of his own political party joining the hate trend, it becomes difficult for the prime minister to defend himself or his party.

Indeed, as a country, we have exhibited the most ludicrous and irrational response possible. Leading film stars announce that clapping can kill coronavirus, that it is potentially spread by flies, or that homeopathy can be a cure. The most bizarre reaction of all, perhaps, was of people burning effigies and bursting crackers, as though this pandemic was a cause for celebration.

It seems our new mantra, as Suhas Palshikar puts it, is “Minimise democracy, maximise interfaith distance, maintain aloofness from poor”.

The case of Kashmir

The responses of the Supreme Court in these two cases – involving migrant workers and violence against Muslims – prompt us to question whether the court can protect our rights at all. Beyond these two, there are many other cases that could be used to buffer my argument, but I will restrict my discussion to the cases involving the lockdown in Kashmir, a crisis of a different kind, but a crisis nevertheless.

The Supreme Court’s orders earlier this year on the lockdown in Kashmir – similar and yet different from the lockdown we face today (at least we have the internet) – represents a missed opportunity for the court to come out strongly in favour of fundamental rights, and fulfil its role as the sentinel on the qui vive.

Three sets of petitions relating to Kashmir were filed before the court. The first related to the communication shutdown and Section 144 orders (prohibiting public gatherings) that were imposed on August 5, 2019. The second set related to the habeas corpus petitions filed against the illegal arrests and detentions of individuals under the draconian Public Safety Act. The third set relates to the constitutional challenge to the government’s decision to amend Article 370 of the constitution and break up the state of Jammu and Kashmir into two Union Territories.

In all three cases, the court failed to give a satisfactory resolution. Here, I want to primarily focus on the internet shutdown case (Anuradha Bhasin), which was finally decided in January.

The court’s judgment is laudable in many respects – it directed the government to publish all orders, present, and future, authorising the suspension of the internet/landline services and prohibiting public gatherings. It rejected the government’s argument that national security considerations precluded judicial review. It also gave constitutional protection to freedom of speech and expression and to practice any profession or carry on any trade, business or occupation over the internet, though it did not go as far as to declare the right to access the internet a fundamental right. Most importantly, the court made it clear that an indefinite suspension of Internet services is patently unconstitutional.

Unfortunately, despite these observations, the Supreme Court failed to actually decide the matter. The purported reason seems to be that it did not have all the orders in front of it, and the situation was changing on the ground daily. This reasoning seems tenuous, when we consider that a few sample shutdown orders were placed before it (with detailed arguments being made about their unconstitutionality), and the court could have easily directed the government to file the remaining orders. Judicial review involves more than a mere declaration of the law. It requires the application of law to the facts at hand. And the facts, quite simply, are that for more than 150 days, and even today, the people of Kashmir are without a proper functioning internet.

The impact of the communication shutdown has been severe. It has affected medical supplies, attendance in school, tourism, and resulted in a loss of business, of several thousand crores. It has led to job losses, and tourism has dropped by over 80%. People, ordinary citizens, have been prevented from performing the simplest of tasks that we take for granted, whether it was filing GST tax returns, upgrading driving licenses, or applying for college admissions, and had to rely on the “Internet Express” – the train from Srinagar to  Banihalwh, ere broadband facilities were functioning – to attempt to finish these tasks. This is apart from the fear that gripped the Valley, and the emotional and mental stress caused by not being able to get in touch with loved ones.

To these people, Anuradha Bhasin offered scant relief. We now have a situation where the government, after first “whitelisting” various websites has permitted the resumption of full access to the internet but at low 2G speeds which makes effective access difficult.  In effect, then, Kashmir continues to face the longest intentional throttling of the internet ever recorded in a democratic country.  As Aniket Aga and Chitrangada Choudhary note,  “we seem to not care that in ‘integrating’ a people via an armed siege, in silencing their voices and dismissing their pain, we are also abrogating our own humanity.”

No room for habeas corpus

Unfortunately, the lack of an effective remedy, and the trend of judicial evasion, are also visible in the court’s handling of other cases dealing with Kashmir.

A petition had been moved on behalf of the detained CPI(M) leader, Md. Yusuf Tarigami challenging his illegal detention. The Supreme Court permitted CPI(M) general secretary Sitaram Yechury to visit his colleague, but only on the condition that he file an affidavit on his return and that he not engage in any political activity during the course of his visit. Subsequently, while allowing Tarigami to visit Delhi to avail of medical treatment, the Supreme Court held that the challenge to his allegedly illegal detention was not urgent, and would come up in due course. The directions by the court are surprising considering that a habeas corpus petition is meant to decide the legality of detention, and are not an occasion for the court to impose conditions and place restrictions on free movement to Kashmir. We must remember that there was no legal prohibition in place against visiting Kashmir, and the court’s order had the effect of putting in place such restrictions. In doing so, the court seemed even more executive minded than the executive itself.

Even the PIL against the alleged reported illegal detention of juveniles and police excesses in dealing with juveniles in the context of the aftermath of the Article 370 decision in Jammu and Kashmir was disposed of on the basis of the report of the juvenile justice committee of the J&K high court, despite media reports to the contrary. The court directed that if there was any case of illegal detention, the petitioners were at liberty to approach the appropriate legal forum (namely the high court) for redressal of their grievances.

Such cases represent instances where, despite the urgency of the matter and the increase in the sanctioned strength of the Supreme Court, it has failed to decide things expeditiously. Instead, it has passed the buck to the high court, which has reportedly received over 250 habeas corpus appeals since August 5, even though it is functioning with half its sanctioned strength of 17 judges.

‘Sentinel on the qui vive’

The repeated responses of the Supreme Court in times of crises – whether it is in Kashmir, or India as a whole – makes me ask, what really is the kind of justice you need in such times?

According to the view espoused by Harish Salve, this lockdown is nothing to worry about. He says governments do not become addicted to arbitrary and unchecked power, and this will not permanently damage democracy. He reminds us of the notorious Emergency days, and says that if Indian democracy could emerge from the “deep freeze” it was put into during that time, “surely it will survive the lockdown measures.”

It is tempting to accept Salve’s viewpoint, but I fear the sunny vision he paints is very far from the truth. On the other hand, Palshikar’s view hits closer to the reality we are in – of the lockdown being a dangerous experiment.

Regardless of which individual or party is in power, the lockdown has shown how willing and gullible the entire population of the country is to suspend democracy in an instant. What is more problematic is the ease with which the bureaucracy and the law and order machinery signed up to make sure this lockdown became a reality. For anyone with autocratic aspirations, these are valuable clues as to the behavioural and intellectual paralysis in India, easily exploitable when needed.

In the circumstances, it is impossible to argue that India will emerge from this lockdown unscathed. Scars are already visible, and an Orwellian world can easily become reality. It is going to take immense will power and mental strength to overcome the lethargy that has swept us away. The optimist in me hopes that this will be possible.

The Supreme Court is really the one agency that can reinforce our faith in the idea of democracy. The question is, will it step up at the right moment in time, before it is too late? (Justice A.P. Shah is a former chief justice of the Delhi high court. This article has been adapted from the text of Justice A.P. Shah’s lecture, ‘Fundamental Rights and Constitutionalism in Times of