Subject: Judiciary

Context

As 2021 draws to a close, a look at the Supreme Court of India’s docket reveals a host of highly significant constitutional cases that were long-pending when the year began, and are now simply a year older without any sign of resolution around the corner.

How delay in judicial process matters differently for the State and individual?

• While the violation of rights — whether through executive or legislative action — is relatively costless for the state, it is the individual, or individuals, who pay the price.
• Making the Constitution effective: Consequently, a Constitution is entirely ineffective if a rights-violating status quo is allowed to exist and perpetuate for months, or even years, before it is finally resolved.
• This point, of course, is not limited to the violation of rights, but extends to all significant constitutional questions that arise in the course of controversial state action.
• Missing the accountability: Issues around the federal structure, elections, and many others, all involve questions of power and accountability, and the longer that courts take to resolve such cases, the more we move from a realm of accountability to a realm of impunity.
• The longer such cases are left hanging without a decision, the greater the damage that is inflicted upon our constitutional democracy’s commitment to the rule of law.

Significant cases that are unresolved

[a] Challenge to the dilution of Article 370

• There is the constitutional challenge to the Presidential Orders of August 5, 2019, that effectively diluted Article 370 of the Indian Constitution, and bifurcated the State of Jammu and Kashmir into two Union Territories, controlled by the Centre.
• It raises the question of whether the Centre can take advantage of an Article 356 situation in a State — a time when no elected government and Assembly is in existence — to make permanent and irreversible alterations in the very structure of the State itself.
•  Implications for federal structure: The answer will have important ramifications not just for Jammu and Kashmir but for the entire federal structure:
• India has a long history of the abuse of Article 356 to “get rid of” inconvenient State governments, and a further expansion of the power already enjoyed by the Centre will skew an already tilted federal scheme even further.
• Power of the Parliament to alter convert State into UT: The case also raises the question of whether, under the Constitution, the Union Legislature has the authority not simply to alter State boundaries (a power granted to it by Article 3 of the Constitution), but degrade a State into a Union Territory.
• If it turned out that the Union Legislature does have this power, it would essentially mean that India’s federal structure is entirely at the mercy of Parliament.

[2] Constitutional challenge to the electoral bond scheme

• Opaque and structurally biased: The electoral bonds scheme authorises limitless, anonymous corporate donations to political parties, making election funding both entirely opaque to the people, as well as being structurally biased towards the party that is in power at the Centre.
• Impact on integrity and right of the citizens to informed vote: In numerous central and State election cycles in the last four years, thousands of crores of rupees have been spent in anonymous political donations, thus impacting not only the integrity of the election process but also the constitutional right of citizens to an informed vote.
• However, other than two interim orders, the Supreme Court has refused to accord a full hearing to the constitutional challenge.

[3] Other significant cases

• Statutory basis of the CBI: As far back as 2013, the Gauhati High Court held that the Central Bureau of Investigation (CBI) was not established under any statutory authority.
• This verdict was immediately stayed when it was appealed to the Supreme Court, but in the intervening years, it has never been heard.
• Challenge to the CAA: More recently, constitutional challenges to the Citizenship (Amendment) Act (CAA), filed in the immediate aftermath of the legislation’s enactment, remain unheard.
• Challenge to the UAPA: The challenges to the much-criticised Section 43(D)(5) of the Unlawful Activities (Prevention) Act, which makes the grant of bail effectively impossible, and is responsible for the years-long incarceration of several people.
• The challenge to Section 43(D)(5) is perhaps the case that most directly affects civil rights, as the section continues to be applied on a regular basis.

Implications of the delay

• Favouring one party: The Supreme Court’s inaction is not neutral, but rather, favours the beneficiaries of the status quo.
• In other words, by not deciding, the Court is in effect deciding — in favour of one party — but without a reasoned judgment that justifies its stance.
• Impact on accountability: Judicial evasion of this kind is also damaging for the accountability of the judiciary itself.
• The Court’s inaction plays as significant a role on the ground as does its action, there is no judgment — and no reasoning — that the public can engage with.
• Impact on the rule of law: For obvious reasons, this too has a serious impact on the rule of law.

Consider the question “What are the implications of the delay in deciding the constitutionally significant cases? Suggest the way forward.”

Conclusion

The current CJI has been on record stressing the importance of the rule of law and the independence of the judiciary. One way of demonstrating that in action might be to hear — and decide — the important constitutional cases pending before the Court.

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Context

In Thwaha Fasal vs Union of India, the Court has acted in its introspective jurisdiction and deconstructed the provisions of the Unlawful Activities (Prevention) Act (UAPA) with a great sense of legal realism. This paves the way for a formidable judicial authority against blatant misuse of this law.

Background of the case

• In this case from Kerala, there are three accused.
• The police registered the case and later the investigation was handed over to the National Investigation Agency (NIA).
• During the investigation, some materials containing radical literature were found, which included a book on caste issues in India and a translation of the dissent notes written by Rosa Luxemburg to Lenin.
• Thus, the provisions of the UAPA were invoked.
• After initial rejection of the pleas, the trial judge granted bail to both the accused in September 2020.
• The Supreme Court was emphatic and liberal when it said that mere association with a terrorist organisation is not sufficient to attract the offences alleged.
• Unless and until the association and the support were “with intention of furthering the activities of a terrorist organisation”, offence under Section 38 or Section 39 is not made out, said the Court.

Issues with UAPA

• Section 43D(5) of the UAPA says that for many of the offences under the Act, bail should not be granted, if “on perusal of the case diary or the report (of the investigation), there are reasonable grounds for believing that the accusation is prima facie true”.
• Thus, the Act prompts the Court to consider the version of the prosecution alone while deciding the question of bail.
• Unlike the Criminal Procedure Code, the UAPA, by virtue of the proviso to Section 43D(2), permits keeping a person in prison for up to 180 days, without even filing a charge sheet.
• Prevents examination of the facts: The statute prevents a comprehensive examination of the facts of the case on the one hand, and prolongs the trial indefinitely by keeping the accused in prison on the other.
• Instead of presumption of innocence, the UAPA holds presumption of guilt of the accused.
• In Zahoor Ahmad Shah Watali, the Court said that by virtue of Section 43D(5) of UAPA, the burden is on the accused to show that the prosecution case is not prima facie true.
• The proposition in Zahoor Ahmad Shah Watali is that the bail court should not even investigate deeply into the materials and evidence and should consider the bail plea, primarily based on the nature of allegations, for, according to the Court, Section 43D(5) prohibits a thorough and deeper examination.
• The top court has now altered this terrible legal landscape.

Key takeaways from the judgement

• The text of the laws sometimes poses immense challenge to the courts by limiting the space for judicial discretion and adjudication.
• The courts usually adopt two mutually contradictory methods in dealing with such tough provisions.
• One is to read and apply the provision literally and mechanically which has the effect of curtailing the individual freedom as intended by the makers of the law.
• In contrast to this approach, there could be a constitutional reading of the statute, which perceives the issues in a human rights angle and tries to mitigate the rigour of the content of the law.

Conclusion

The judgment should be invoked to release other political prisoners in the country who have been denied bail either due to the harshness of the law or due to the follies in understanding the law or both.

Context

When the bench of the Chief Justice of India passed an order appointing a committee in the Pegasus matter, it served the interest of every Indian.

What led to the appointment of committee by the Supreme Court

• Pegasus has allegedly been used against politicians and individuals across the globe, including against politicians, journalists and other private individuals in India.
• The issue rocked Parliament, but the government was not willing to share any information pertaining to the software or its use, citing national security as a reason.
• The alleged victims of the software turned to the Supreme Court, and prayed for setting up of an independent enquiry.
• The government, on being called upon by the Supreme Court, cited national security, contending that any information it let out would become a matter of public debate, which could be used by terror groups to hamper national security.
• Its unrelenting stand left the court with no option but to take a call on whether to blindly accept the government’s refusal to share no information whatsoever, or lean in favour of a citizen’s right to privacy, a fundamental right guaranteed under the Constitution.
• The Supreme Court chose the latter course.

Balancing the fundamental rights  nad judicial review with national security

• The Supreme Court has observed that “the state cannot get a free pass every time the spectre of national security is raised”.
• It goes on to say that national security “cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this court should be circumspect in encroaching upon the domain of national security, no omnibus prohibition can be called for against judicial review”.

Conclusion

The Pegasus order upholding the individual’s right to a life of dignity and privacy, is music to the ears of those who believe in constitutional values and rule of law.
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Context

The Supreme Court of India appointed an independent committee to inquire into charges that the Union government had used the mobile phone spyware Pegasus to invade, access, and snoop into devices used by India’s citizens.

Background

• The petitioners before the Supreme Court relied on an investigation conducted by a consortium of global media.
• These reports revealed that hundreds of phone numbers from India had appeared on a global list of more than 50,000 numbers that were selected for surveillance by clients of the Israeli firm, the NSO Group.
• The NSO has since confirmed that its spyware is sold only to governments, chiefly for the purposes of fighting terrorism.

Government’s defence

• In response to the allegations made against it, the Government invoked national security.
• What is more, according to it, the very adoption of this argument virtually forbade the Court from probing further.
• In matters purportedly involving national security, the Court has shown an extraordinary level of deference to the executive.
• The cases also posed another hurdle: a contest over facts.
• The petitioners were asserting the occurrence of illegal surveillance.
• The Government was offering no explicit response to their claims.
• Now, to some degree, in its order appointing a committee, the Court has bucked the trend of absolute deference.
• The Court has held that there is no magic formula to the Government’s incantation of national security, that its power of judicial review is not denuded merely because the state asserts that the country’s safety is at stake.

Accountability on part of the government

• The order recognises, correctly, that spying on an individual, whether by the state or by an outside agency, amounts to an infraction of privacy.
• This is not to suggest that all surveillance is illegal.
• In holding thus, the Court has effectively recognised that an act of surveillance must be tested on four grounds:
• First, the action must be supported by legislation.
• Second, the state must show the Court that the restriction made is aimed at a legitimate governmental end.
• Third, the state must demonstrate that there are no less intrusive means available to it to achieve the same objective;
• Finally, the state must establish that there is a rational nexus between the limitation imposed and the aims underlying the measure.
• The test provides a clear path to holding the Government accountable.

Way forward

• The absence of a categorical denial from the Government, the order holds, ought to lead to a prima facie belief, if nothing else, that there is truth in the petitioners’ claims.
•  Having held thus, one might have expected the Court to frame a set of specific questions demanding answers from the state.
• If answers to these questions were still not forthcoming, elementary principles of evidence law allow the Court to draw what is known as an “adverse inference”. 
• A party that fails to answer questions put to it will only risk the Court drawing a conclusion of fact against it.
• If, on this basis, the petitioners’ case is taken as true, there can be little doubt that there has been an illegitimate violation of a fundamental right.
• It is, therefore, unclear why we need a committee at all.
• Ultimately, in the future, the Court must think more carefully about questions of proof and rules of evidence.

Conclusion

Ad hoc committees — sterling as their members might be — cannot be the solution. Far too many cases are consigned to the back burner on the appointment of external panels, and, in the process, civil liberties are compromised.

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Context

The Supreme Court of India has appointed a committee presided by Justice (Retd.) R V Raveendran to inquire into the Pegasus revelations.

Terms of reference

• The court’s terms of reference include queries on, “What steps/actions have been taken by the Union of India after reports were published in the year 2019 about hacking of WhatsApp accounts”, and, “Whether any Pegasus suite of spyware was acquired by the Union of India, or any State Government, or any central or state agency for use against the citizens of India”.
• The constitution of this committee marks an important step towards accountability for the victims and the larger public on the use of Pegasus.

Significance of the committee on Pegasus issue

1) Transparency and disclosure

• The order of the court constituting the committee attains significance for three clear reasons.
• The first is the court’s continuing insistence on transparency and disclosure by the Union government.
• The only filing made in court by the government was a limited affidavit, containing short paragraphs of generalised denials and the sole annexure of a statement by the Minister for Electronics and IT before Parliament.
• Immediately, the Supreme Court pointed out that these are inadequate and provided further time.

2) The SC’s approach towards national security

• The second reason is the Supreme Court’s firm approach towards the national security submissions by the Union government.
• The court correctly applied the settled convention on legal pleadings and affidavits by asking the government to, “necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns.”
• The second aspect of the national security argument is how the court balances it with the fundamental right to privacy.
• Here, drawing from the framework of the K S Puttaswamy judgment the court specifically states that, “national security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning” and, “mere invocation of national security by the State does not render the Court a mute spectator”.
• These are significant observations that, when followed as precedent, will bolster confidence in constitutional adjudications especially when courts demand evidence on arguments of “national security” to avoid generalised statements made to evade accountability.

3)  Rejection of the suggestion by the Solicitor-General to constitute a government committee of experts

• The court correctly notes that even though the Pegasus revelations were first made on November 1, 2019, there has been little movement on any official inquiry.
• It also records the genuine apprehension of the petitioners, many of whom are victims of Pegasus, that since the sale of this malware can only be made to governments, they fear the involvement of state agencies.

Challenges

• These include the functioning of the committee and the cooperation of government witnesses, the publication of the report so as to ensure public confidence and, ultimately, the directions and remedy provided by the Supreme Court.

Conclusion

Hence, the constitution of this committee provides hope. At the same time, any honest assessment should consider the more challenging tasks ahead.

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