Supreme Court as Custodian of the Constitution

Part - I       Part -II

Where it Scores and Where it Fails

[Part III]

(This final instalment of this article is going to press at a time when a Supreme Court verdict dismissing a PIL seeking a probe into the Rafale scam has hit a new jurisprudential low. Possibly for the first time ever, a Supreme Court verdict parrots obvious factual errors submitted by an accused Government without any diligence or scrutiny. For details, see the first inside cover page. - Ed/-)     

The Loya Case: was the Supreme Court trying to Hide the Truth?

Judge Brijgopal Harkishan Loya died, according to official records, in a sudden cardiac attack on the night of 30 November- 1 December 2014 at Nagpur. At the time he was presiding over the Central Bureau of Investigation court hearing the Sohrabuddin Sheikh fake encounter case, in which BJP president Amit Shah was one of the main accused. Judge M.B. Gosavi, his successor, discharged Amit Shah less than a month after Loya’s death, saying the BJP leader’s name had been dragged into the fake encounter case for “political reasons”.

This statement itself was politically loaded, and the way the case against Shah, which was being heard since 2012, was drawn to an abrupt close, rendered the entire episode -- from Loya’s unexpected if not mysterious death to the release of the powerful politician -- highly suspicious.

Exactly three years later, The Caravan reported that some of Loya’s family members had expressed their suspicions around his death and the way the police and the court handled it. The magazine also raised questions around the possible tampering of various hospital documents related to his death. Thus it quoted Dr. R.K. Sharma, the former head of the Forensic Medicine and Toxicology Department at the AIIMS in Delhi, who categorically ruled out – on the basis of official medical reports -- any possibility of a heart attack. A couple of pleas seeking independent probe into the potentially unnatural death of the judge was taken up for hearing on January 11 this year, and on the 22nd the SC transferred to itself two more petitions from the Bombay High Court. On 19 April, the court summarily dismissed all those petitions, saying “There is no merit in the writ petitions, Judge Loya’s death was natural”. And it went out of its way to add that the petitions were “frivolous” and “motivated”, and that the petitioners were attempting to malign the judiciary.

The bias -- or hatred, if you will -- against the whistleblowers is glaring. The learned judges took whatever the Maharashtra government said (including the reported statement of the judicial officers who accompanied Loya in Nagpur on 30 November – statements which were not even produced in court) as gospel truth, blatantly ignoring all evidence and arguments to the contrary. This was in flagrant violation of basic principles of jurisprudence and the verdict was wide of the mark, as A.P. Shah, former chief justice of the Delhi high court, explained while speaking at a book release function in Delhi. (See box)

The Regressive Judicial Amendment of the SC/ST Act

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act – or simply the SC/ST Act or the Atrocities Act  -- aims at safeguarding members of SC and ST communities from “atrocities” (a long but non-exhaustive a list of which is given in the Act itself) perpetrated by non-SC/ST persons.  It was passed in 1989 in the backdrop of rising violence on the lowest rungs of our increasingly unequal society and in recognition of the fact that existing laws (including the Protection of Civil Rights Act 1955 which had similar goals and was amended in 1976 to make it more effective) were inadequate to check these crimes. In a country perennially ridden with caste violence, the 1989 law provided some – let’s say a little, and that too mainly psychological -- succour for the most downtrodden social strata. This was possible because the Act provided for immediate arrest of any person against whom an FIR was lodged under this Act and, by implication, disallowed anticipatory bail.

The Act was a thorn in the flesh of all upper caste forces and angry outbursts against its alleged misuse were rife from day one. Attempts were made to roll back this progressive law, the latest being the SC judgement in Dr. Subhash Kashinath Mahajan versus The state of Maharashtra and Another.

Dr Subhash Mahajan, Director of Technical Education, Maharashtra, a public servant, moved the SC to quash a criminal case under the SC/ST Act against him. The appeal had been turned down by the Bombay High Court. For the SC, the proper thing to do was to admit the appeal and, if the Bench was convinced that the case against Mahajan was false or frivolous, to dispose of the case. Such a verdict could be debatable, but not deplorable. What the Bench comprising Justices Adarsh Goel and U U Lalit did, however, was totally unacceptable. It overstepped its brief and took this opportunity to impose certain restrictions which in effect diluted the POA beyond recognition. It ordered that an arrest under this Act can be made only after a preliminary investigation and approval by higher authorities, and anticipatory bail was not impermissible. To quote:

“In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P.

To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.”

The Curious Case of Judge Loya

THE Judge Loya case … is another where an inquiry was evidently needed, but was openly avoided. We all know the facts. A powerful politician was involved. The Supreme Court expressly announced that the judge in the trial ought not to be changed at any cost, but the day before the politician was to appear before the court, the judge in question was mysteriously transferred, in the face of the Supreme Court order. Another judge – Loya – was appointed thereafter. Video testimony of his father and sister suggest that the judge was offered big money, plots and property.

… He demanded reasons as to why the politician did not appear before the court, and kept the matter for December 15 of that year, but died suddenly on November 30. The next judge comes on the scene, and before you can blink an eyelid, by December 30, the matter is over. … Here, a case involving a voluminous record of 10,000 pages is concluded in record time. The CBI decides not to appeal. Harsh Mander as a private citizen tries to file an appeal, but the Supreme Court sends him away on grounds of lacking locus standi. …

More problematically, the Supreme Court has evolved a whole new jurisprudence regarding the statement of a judge. It says that the statements of judicial officers should be accepted on the face of it, as their statements have a “ring of truth” about them. Note that these statements made by the four judges who accompanied Judge Loya to Nagpur were not made in their capacity as judges, but about their personal knowledge of what happened in Nagpur. Nobody has seen their statements. However, the ring of truth still exists, and therefore the court has decided that these statements should be accepted. It is as if judges are to be treated as superhuman, as beings who are not capable of telling untruths.

It gets more uncomfortable when the court dismisses the fact that the judges cannot be cross-examined, because their testimonies are not on oath, as being “mere technicalities”. The cross examination is regarded in criminal law, and in international convention, as the most powerful weapon to get at the truth. And our Supreme Court calls it a mere technicality? We should be very very worried.

Compare this with what court said regarding the video testimonies of Judge Loya’s father and sister. It said that these were mere hearsay and ought to be disregarded. In the same case, the Supreme Court chooses to completely disregard the Evidence Act, when it comes to the testimony of judges, but chooses to invoke it for the video testimony of the deceased judge’s family. This is an entirely new principle that has been evolved – that a testimony is said to be accepted, not because the person is telling a truth, but because that person is of a certain status, in this case, a judge, and by virtue of being of such status, that person is incapable of telling an untruth.

After reading the judgment, it seems, as another young scholar, Alok Prasanna Kumar says, that the court was not interested in finding out the truth.”

Justice Shah’s last comment, where he quotes Kumar, succinctly sums up the highly objectionable outcome of the Loya case. If the court was keen to get at the truth, why did it declare, at the very outset, that it was concerned only with the death of the judge and would not go into other aspects, including Amit Shah’s unexpected discharge from the Sohrabuddin Sheikh murder case? If it was really serious about unravelling the entire course of developments leading to the apparently unnatural death of Judge Loya, should it not have allowed, nay, encouraged, investigation of all possible angles – one of which was the possibility that Loya, an upright judge who had insisted on the appearance of the second-in-command in the ruling dispensation in his court, needed to be removed from the scene and replaced by a more pliant judge precisely for the purpose of absolving that powerful politician of the charges against him?

Certainly it should have, the more so in view of the conduct of Loya’s successor Gosavi, who not only gave a clean chit to Amit Shah without a trial, but even went out of his way to ascribe, again without any substantive evidence, political motives to the petitioners. But the three-judge bench foreclosed that line of investigation by choosing to look into the death of the judge in isolation from the very crucial political context.1

The court’s only concern, the judgement reveals, was to curb “false implication of innocent citizens on caste lines” and render the anti-atrocity law – which it saw as merely an instrument of “blackmail” and “vengeance” -- toothless.  It cited low conviction rates under this Act as an indication of misuse. But it is well-known and well-established by independent research that the low conviction rate is only a reflection on how badly (if at all) the cases are registered and pursued thanks to caste bias among the investigating officers and a good section of judges. As a report by the Human Rights Watch titled Hidden Apartheid: Caste Discrimination against India’s ‘Untouchables’ noted, “Dalits are frequently the victims of discriminatory treatment in the administration of justice. Prosecutors and judges fail to vigorously and faithfully pursue complaints brought by Dalits, which is evidenced by the high rate of acquittals in such cases”. Indeed, there are umpteen instances – including the Laxmanpur Bathe and Bathani Tola massacres, where all the accused, including those sentenced to death/life imprisonment by trial courts, were acquitted by the Patna High Court – which show how acquittals are engineered.

The judgement sounds even more atrocious when the judges quote the Constitution in a highly misleading manner in support of its position. In the Indra Sawhney case (1992) the Supreme Court used the word ‘fraternity’ to justify the reservation policy but now this Bench gives it a strange new connotation:

“… interpretation of Atrocities Act should promote constitutional values of fraternity and integration of the society. This may require check on false implication of innocent citizens on caste lines. … Law should not result in caste hatred.” The judges go so far as to suggest that the Act may even “perpetuate casteism”.

So, the learned judges would like us to believe it is the Dalit and Adivasi complainants who obstruct equality, liberty and fraternity in our country! Such an elitist, Brahmanical attitude towards the bulk of working people on the part of a constitutional court is by itself a sound reason why the Atrocities Act needs to be made more rigorous and not read down.2

The verdict, pronounced on March 20 this year, evoked nationwide militant protests by Dalit groups and democratic forces, which reached its peak on April 2. There were violent clashes with the police and the Centre was forced to file a review petition against the apex court verdict the very next day. However, its cunning duplicity was manifest in the ambivalent and apologetic manner in which the Assistant Solicitor General presented the government’s position in the court. The court refused to stay the verdict and a Bharat bandh was called by Dalit groups on August 9.

After a lot of dilly-dallying, the Modi government passed an amendment, with support from the Congress and other parties – all of which were scary of losing their Dalit vote banks -- just on the eleventh hour before the bandh to overturn the Supreme Court order. The amendment ruled out any provision for an anticipatory bail for a person accused of atrocities against SC/STs, notwithstanding any court order. It also ruled that no preliminary enquiry will be required for registering a criminal case and an arrest under this law would not be subject to any approval.  

SC Fails to Protect Stateless Hapless Refugees

In deciding one of the first major cases before a Bench presided over by the new CJI, the apex court once again failed to uphold the humanitarian values that run like a scarlet thread from the beginning to the end of our Constitution.

On October 4, 2018, senior lawyer Prashant Bhushan sought the top court’s intervention to stop the deportation of seven Rohingya Muslims set to be pushed back from Manipur to Myanmar a few hours later. He argued that the Rohingyas continued to be deprived of citizenship in Myanmar and were offered only National Verification Cards, which are merely a proof of residence and not a proof of citizenship, as the lawyer representing the government claimed. So they are not “illegal immigrants” but stateless persons who cannot be sent back to their ‘own countries’ simply because they have none. Also it is widely recognised that Rohingyas are fleeing grave human rights abuses and under international law they are entitled to protection in the country they take refuge. So the Indian government must accord them refugee status as per the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, as well as the Convention against Torture, to all of which India is a signatory.

Unfortunately, none of these sane arguments made its mark on the judicial conscience of members of the Bench. They accepted on face value the government’s claims that the Rohingyas had consented to the deportation, and that Myanmar had agreed to grant them citizenship – claims that were totally unsubstantiated and fraudulent.

Real Custodians of the Constitution must be More Vigilant and Active

We can now conclude the survey by summing up the major findings.

Firstly, the Constitution of India is a veritable treasure house of egalitarian, emancipatory, democratic-socialist values which need to be rediscovered, reemphasized, progressively reinterpreted and further developed in light of changing circumstances but strictly in keeping with its basic spirit, in every new juncture in national life. This is especially important today, when our country finds itself at a critical crossroads between constitutional democracy and corporate communal fascism, with the Constitution – its values and principles – standing like a rock against fascist onslaughts.

Secondly, the Supreme Court, supposed to be the custodian of the Constitution, did a very good job in reaffirming these principles in its judgements in the Puttaswamy case. Here the moot point was whether, generally speaking, the Constitution recognises privacy as a fundamental right; no direct clash with any particular action or scheme of the union government was involved. Where there was such a clash, for example in the Aadhar, Bhima Koregaon, death of Loya and deportation of Rohingyas cases, the SC as an institution lacked the courage of conviction to firmly establish the constitutional principles it always swears by in general terms. In two of these (Aadhar and Bhima Koregaon), however, minority verdicts – not binding though – served to commendably uphold the pro-people, anti-authoritarian position of the Constitution in these politically significant litigations. In two others (Loya and Rohingyas cases) even that consolation – so to say – was not there: the top court presided over gross miscarriage of justice in consensus verdicts.

Thirdly, in the arena of gender justice and equality, the SC has come through with flying colours. This is politically important too, because fascism always encourages and thrives on retrograde prejudices and social customs. However, one cannot forget the social reforms that are urgent but long overdue, such as on the question of marital rape. In Independent Thought versus Union of India (2017) case, the apex court refused to strike down the exception for marital rape in rape law. The two-judge Bench, for all practical purposes, accepted the government’s position on the grounds that Parliament had extensively debated this issue. The very sensible recommendations of the Verma Committee on this matter was totally ignored. Similarly, on the question of providing social justice to Dalits the SC cut a sorry figure – as we have seen, in the case of the SC/ST Act and also on several other occasions.

Now, what do we make out of the glaring inconsistencies or contradictory tendencies in the judgements delivered by the Supreme Court? Well, they originate from the essentially contradictory nature of the institution itself. On the one hand, essentially the judiciary, including its highest echelons, is very much a component part of the repressive state machine and as such it shares all the class and caste biases as well as the “now trending” notions of the ruling elite. On the other hand, it must appear as a “justice delivery system” that is perfectly neutral towards all social divisions, entirely ‘above politics’, totally independent of the legislative and executive wings of the state, absolutely incorruptible and entitled to the highest moral ground – a hallowed institution representing the zenith of wisdom and magnanimity combined with sternness in punishing the guilty. This image or appearance is consciously promoted not only by the judiciary itself but also by the legislature and the executive as well as the media and other ideological apparatuses of the ruling class, to hide its essential class character. Still, as Lenin wrote, the essence appears. In this case, it comes out mostly in the form of verdicts -- some of which we have discussed above -- blatantly biased in favour of the state and those belonging to the ruling elite. Of course, in some instances the personal temperaments of the concerns judges may influence a verdict, but in an overall sense the systemic and ideological factors play a decisive role. Thus it was that Justice Chandrachud, the Liberal heartthrob who earned a lot of praise for pronouncing progressive judgements in Puttaswamy, Sabarimala, Aadhar and Bhima Koregaon cases, also authored the highly atrocious judgement on the Loya case. Instances like this bring out the limits of glossy bourgeois liberalism and the need for transcending it in the arena of mass movements.

So, rather than expecting anything from the apex court, we should utilise its good judgements in favour of our own agenda and expose its bad verdicts – like the recent one on the Rafael deal – to sharpen our struggle. It is “we the people of India” who, according to the Preamble of the Constitution, “[gave] to ourselves this Constitution” and we are its original and ultimate custodian. As such, we shall defend it against all sorts of attack, we shall defeat the forces that seek to undermine and destroy it, and we shall move forward to truly realising the great emancipatory promise of this living document in a new India, a People’s India.

  • 1. Not surprisingly, the way the Loya case was handled proved to be the ultimate tipping point for the 12 January press conference by the four seniormost judges of the top court, as would-be Chief Justice Ranjan Gogoi told the journalists present there.
  • 2. Here it may be noted, if only in passing, that it was the same Bench that diluted Section 498A of the Indian Penal Code in Rajesh Sharma Vs State of UP (2017) in the name of preventing ‘misuse’ of this provision by married women. The judges ordered that marital harassment complaints must be filtered through district-level Family Welfare Committees before any arrests could be made. In this instance, it was women who were at the receiving end of judicial misinterpretation of a progressive law. However, this directive was overturned by a larger Bench of the top court in September 2018.