The silent sentinel

As the year 2020 dawns on us, the state of the country and its judiciary fill me with dread; yet protests by people of India coming out on streets and wanting to defend their 'own' Constitution, are deeply heartening and keep the hopes alive. If the image of the judiciary as an independent and impartial institution suffered huge damage in 2018, it lied in tatters in 2019. The single biggest development of 2019 was not the executive belligerence to unilaterally impose Hindu majoritarian principles like revocation of Article 370 or bringing in the Citizenship (Amendment) Act, 2019 ('CAA'), but it was the complete abdication of the constitutional duty of the Supreme Court to protect the fundamental rights of citizens.

Whether it was the NRC in Assam, challenging the restrictions on communications shutdown in Kashmir, or seeking judicial enquiry into the brutal police violence on students of Jamia Milia Islamia University, and Aligarh Muslim University, the Supreme Court has just looked away, and allowed millions of Indian citizens to be stripped of the dignity and rights, arbitrarily detained, forced to live under a lockdown for five months, and encouraged the impunity of police officials to perpetrate worst forms of violence against common citizens.

As is well-known, the Supreme Court of India spearheaded the NRC process in Assam, with the bench of Chief Justice (Retd.) Ranjan Gogoi and Justice Rohinton Nariman oversaw the humanitarian mayhem wherein out of 3.3 crores of people who applied to NRC in Assam, 19 lakh got excluded — most of whom were genuine citizens but did not have the required documents to prove it. This exercise was carried out by the Apex Court, despite the fact that the constitutional validity of Section 6A of the Citizenship Act, 1955 itself has been challenged, which provided the legal basis to conduct NRC, and still pending before the Court. Rejecting all concerns of the humanitarian crisis, the Supreme Court directed the publication of final NRC on August 31, 2019, leaving 19 lakh persons out, but provided no guidance as to how the excluded persons would be tried by the Foreigner Tribunals in Assam. More significantly, the Assam BJP has rejected the NRC in Assam, ostensibly citing many irregularities, but actually being extremely unhappy that out of 19 lakh persons, around 12-13 lakh persons belong to the Hindu community.

On August 5, 2019, the Central government unilaterally revoked Article 370 of the Constitution, which granted special status to the State of Jammu & Kashmir, and imposed an unprecedented lockdown of the entire State, with complete shutdown on internet communications, curfew throughout, and detaining thousands of citizens, including students, political leaders, lawyers and activists under the Public Safety Act. When several petitions were filed in the Supreme Court challenging the restrictions on communications, including the media, the Apex Court took almost 60 days for the arguments to begin properly. No urgency that is required in cases of threats to life and liberty was shown by the Court, and the government was given months to file their affidavit. In individual cases of political prisoners, the Supreme Court allowed one or two politicians to meet the former, but with a caveat that they would not talk about their visit to Kashmir to the media, either in Kashmir or outside. The sealed cover jurisprudence continued, with the Court asking Petitioners to give a report of their visit to Kashmir in 'sealed covers'! And on November 27, 2019, the Court reserved its judgment on petitions challenging communication restrictions, but no judgment given till date. Kashmir continues to remain under almost total lockdown for the last five months, with only some landline phones working, mobile internet and broadband still shut, and Section 144 imposed in many parts of Jammu & Kashmir. Thus, the Supreme Court is no longer the sentinel on the que vive of fundamental rights in India, especially if it pertains to issues not palatable to the Executive.

Lastly, on the issue of the horrific police violence on Jamia & AMU students by Delhi Police and UP police respectively on the night of December 15, 2019, the Supreme Court first refused to see the difference between students protesting peacefully, and the police perpetrating gross violence, including lathi-charge, using tear gas, and even firing bullets at students inside the University campus, i.e., in the library, canteen, and mosque. Chief Justice Bobde's almost insensitive remarks that "rioting first had to stop" or "public property cannot be destroyed", made it seem that the Court was blaming students for the violence, whereas enough documentary evidence showed the police to be engaging in violence and destroying public property, whether in Jamia, AMU or in other districts of Uttar Pradesh.

On December 17, 2019, when the Court was actually considering petitions seeking an independent judicial enquiry into the police brutality allegations in Jamia and AMU, the Court washed its hands off and asked Petitioners to approach the individual High Courts. In the face of grave allegations that unarmed students were shot at in the university library, the Supreme Court — one of the most powerful Constitutional Courts in the world — shockingly chose to remain silent. Actually, not so shocking anymore. Certain events of the last two years of judiciary's actions have shown that judiciary has fully abdicated its role as guarantor of the fundamental rights of Indian people, especially the Supreme Court.

What the Court's refusal to initiate an enquiry into Jamia and AMU violence did was beyond imagination. It finally broke the backs of the Indian people, especially Indian Muslim community, who anyway was protesting against the CAA-NRC (and now even National Population Register has been added), and that of the hitherto silent mainstream Indians, including students (not just from JNU), professionals, and of course the larger civil society, who realised that this was a fight to the finish. The Modi-Shah regime has gone for the broke, i.e., to bring in an overtly discriminatory law against Muslims, and overturning the secular nature of our citizenship structure, and courts are no longer our allies in this struggle.

The seeds of 'committed judiciary' sown in the last 6 years are now fructifying fully, with the Judiciary either being a passive spectator or even being an enabler in some cases of the present fascist regime. Accordingly, the common people of India have taken on the task of protecting and preserving the Constitution, with most marches starting with collective readings of the preamble, and/or the fundamental rights of equality, non-discrimination and freedom. Finally, the Constitution is being owned, accepted, and truly felt by the Indian people, since it is they who have to protect it now. For the women of Shaheen Bagh, a nondescript working-class locality in South Delhi, where hundreds of women have been continuously protesting for more than 18 days on the road in one of the coldest winters of Delhi in last 119 years, the 'samvidhan' is as much about them and their aspirations for themselves, and their children's future, as about saving the country. Their mantra 'agar samvidhan bachega, tabhi desh bachega' is simple, and yet so powerful, which unfortunately the present Supreme Court has refused to understand.

So while the 'break up' between the judiciary and Indian people is almost complete, it is the start of one of the most beautiful relationships between the Indian constitution, and 'We the People of India'.

Amritananda Chakravorty is a Delhi based lawyer. Views expressed are strictly personal