By Prof Yogesh Pratap Singh
The Supreme Court of India is looked at as the upholder of the rights of citizens, and to a great extent, it has delivered on that trust. The Court has done more good for the general public than most other wings of the State. It has safeguarded the rights of citizens from actions of the public as well as private entities. This has resulted in people also reciprocating with love and respect for the Court. However, this seems to be changing slowly.
With the advent of the internet and the ease of access of information in an age where every small mistake is amplified, the mysticism of the top court has become diluted. From infighting (circa the four judges’ press conference) to accusations against successive chief justices of favouring the government, every decision of the Court has been given a political tint and is being analysed and criticised as pro-government. The image of the Supreme Court has taken a beating.
While there has been no proof that certain verdicts delivered by the Supreme Court have been influenced by the government, the fact is that several crucial ones have been favourable to the government and caused anxiety amongst large sections of the population. There have been quite a few cases concerning the actions of the central government which the apex court has decided to postpone. The Court refuses to hear constitutional challenges to far-reaching State action, sometimes for years.
A survey conducted by Vidhi Centre found that a total of 587 cases are pending before Constitution Benches of the Supreme Court and 35 (out of these total cases) are concerning vital issues. Postponement of these cases has unequivocally benefitted the government.
The demonetisation policy introduced by the government in November 2016 caused immense hardship to various sections of the population, but the apex court refused to stay the notification despite the fact that it raised substantial legal issues. One was that the decision was single-handedly taken by the central government without involving the RBI Board. The Court, though, agreed to examine the constitutionality and legality of the governmental action, but never gave this issue an effective hearing.
In the Finance Act 2017, the government introduced a new system of electoral funding, i.e., electoral bonds. The scheme does not require political parties to mention the names and addresses of those contributing by way of electoral bonds in their contribution reports filed with the Election Commission of India annually.
Data collected by the Association of Democratic Reforms (ADR) suggests that between 2017-18 and 2018-19, political parties received a total of Rs 2,760.20 crore from electoral bonds and a massive 60.17% (Rs 1,660.89 crore) of this was received by the ruling political party, the BJP. Political parties that had remained inactive over a prolonged period and did not take part in any election also received donations through electoral bonds. The scheme was challenged in 2018 by ADR immediately after it was brought into force. The contentions were manifold: electoral bonds not only infringe a citizen’s fundamental “Right to Know”, but bizarrely, make the political class unanswerable and unaccountable by withholding vital public information.
While electoral bonds provide no details to the citizens, the government of the day can access donor details by retrieving data from the State Bank of India. Hence, it is against the very spirit of democracy and rule of law. Even the Election Commission, which has been questioned for taking a pro-governmental stand in recent times, had raised serious concerns that “any donation received by a political party through an electoral bond” has been taken out of the ambit of reporting and also it can never be determined whether the political party has taken any donation from government companies and foreign sources in violation of the provisions of the Representation of the People Act, 1951. Therefore, it is a regressive step taken by the government. It’s now four years and despite many assembly and a general election being conducted, the Supreme Court still keeps this issue under the purview of the doctrine of postponement and allows the case to remain dormant.
The Court also refrained from examining legal and constitutional challenges posed to the centre’s decision on Article 370 that changed the constitutional status of J&K and several other decisions like the internet shutdown in the Valley. Quite surprisingly, it did not even entertain the habeas corpus petitions which concerned the life and liberty of the people of the state. On the contrary, the Court pointed out that the petitions suffered from serious defects and had no meaning. The Court even decided to give the government more time to review the situation after the authorities said that the restrictions would be lessened soon. There was no justification for the Supreme Court to postpone matters that involved a person’s liberty.
The constitutional validity challenge of Aadhaar was kept pending for six years, and by the time it was heard, the government effectively offered the Court a fait accompli. Similarly, the challenge to economically weaker sections reservation (Janhit Abhiyan vs Union of India), CAA/NRC issue (Indian Union Muslim League vs Union of India & Assam Public Works vs Union of India), seeking a more transparent and accountable system of appointment of Election Commissioners (Anoop Baranwal vs Union of India, Ministry of Law and Justice Secretary), the challenge to three farm laws (Rakesh Vaishnav & Ors vs Union of India & Ors.), which finally the government decided to withdraw, are some other crucial cases pending before the Supreme Court for a considerable period of time.
Keeping in mind the sensitive nature of these cases, timely adjudication was desirable, but little to no developments were seen in these cases on the judicial front. As a result, these cases have been stuck in limbo, benefitting the central government.
Impartial observers of the Supreme Court are drawing their own conclusions not only about the independence of the judiciary but also about the integrity of the judges. The time has come for the judiciary to sit down and introspect and see what can be done to revive the faith of the people.
—The writer is Professor of Law & Registrar, National Law University, Odisha