By Prof Upendra Baxi
“TO Have A More Civilized India, Judiciary Must Be Strengthened,” was the headline remark of retiring Chief Justice of Allahabad High Court Sri Govind Mathur. He further said that the judiciary cannot remain “in hibernation when the people of this country are under deep depression, are living every moment under the fear and threat of death, where a sense is prevailing that certain privileged persons are getting every protection but the larger section is helpless”. He deprecated the executive was “still acting like colonial rulers”, and ignoring judicial order and directions, even on the sedition law. He added: “It is a well-accepted fact that criticism of the government is not seditious in law.”
His predecessor in that high constitutional office, now a Supreme Court judge, Justice DY Chandrachud, headed a bench that ordered bail for Manipur activist Leichombam Erendro1 on July 22, 2021, (arrested under the National Security Act, which authorises indefinite preventive detention without bail). A complaint by Usham Deben Singh, the vice-president of BJP Manipur, for a Facebook post alleged that he “deliberately and wilfully insulted and outraged religious feelings and sentiments” of BJP workers and family members of the deceased. That post (reiterated by an activist journalist Kishorchandra Wangkhem) was related to the death of Manipur BJP chief S. Tikendra Singh. Whether what Erendro wrote on Facebook violated any provision of the NSA or the alleged post had such consequences as alleged, are issues pending for final judicial decision. What the Apex Court did was only to order an immediate release of the accused on bail. Following this, on July 23, Chief Justice PV Sanjay Kumar and Justice Kh Nobin Singh of the Manipur High Court also granted bail to Wangkhem, as his continued incarceration was “as much a violation of Article 21 of the Constitution, as it was in the case of Erendro Leichombam”.
In Ramesh Chaurasia (July 21, 2021), Justices DY Chandrachud and Hrishikesh Roy spoke about two major principles: the independence of the judiciary and judicial intolerance of the existence of two Indian legal systems—one for the resourceful rich and one for the resourceless impoverished.
The case is strictly sub judice. And it is wrong for non-judicial folks to make any determinations about the guilt or the innocence of the accused persons. However, we should note that the High Court (on July 23, 2019) allowed the accused to continue on bail “until his claim that he was being falsely implicated in alleged murder during the period when his sentence was suspended, was first investigated in ninety days. The Supreme Court held that by doing so the High Court clearly transgressed into an unusual domain”. It went so far as to say that the “High Court has in effect stultified the administration of criminal justice” [Para 29, see also Para 37].
The aspect of independence of the judiciary arose because of some “apprehensions expressed by the ASJ in his order dated 8 February 2021”. The Court held that “compartmentalization of the judiciary and executive should not be breached by interfering with the personal decision-making of the judges and the conduct of court proceedings under them” and there is “no gainsaying that the judiciary should be immune from political pressures and considerations”. Further, a “judiciary that is susceptible to such pressures allows politicians to operate with impunity and incentivizes criminality to flourish in the political apparatus of the State” [Paras. 42/43].2
Additionally, it unequivocally states that “India cannot have two parallel legal systems, ‘one for the rich and the resourceful and those who wield political power and influence and the other for the small men without resources and capabilities to obtain justice or fight injustice’” and that the “existence of a dual legal system will only chip away the legitimacy of the law”. And the Indian State must “demonstrate its ability and willingness to follow the rules it itself makes, for its actions to not transgress into the domain of ‘governmental lawlessness’.” At the same time, “we believe that judges, while being undeterred in their commitment to follow the law and do justice, should be wary of launching into a diatribe against the State authorities without due care and reflection” [Para 44 and 45]. This calls for socially responsible criticism of the government; shooting from the hip is not permissible, according to the Constitution nor wise according to the Court.
It is indeed gracious of the Court to acknowledge the expression “governmental lawlessness” comes from my work, The Crisis of the Indian Legal System3, but I always used it with a companion phrase “official deviance”. While the matter so far discussed concerned the serious alleged offences under the Indian Penal Code, cancellation of bail for the accused, and matters of independence of the judiciary, the above phrases specially relate to the CJS and PDS (criminal justice system and preventive detention system) and my studies led me to the conclusion that what occurred in the PDS was the evasion, even evacuation, of constitutional values and culture in the realms of public administration and state governance. Subsequently, my comparative law studies showed that both governmental lawlessness and official deviance are an inveterate dimension of democracies4.
The PDS in India has since expanded apace and almost become a parallel legal system. When the Constitution allowed PDS by Article 22, and the courts, especially built an edifice of preventive detention jurisprudence, they could not have anticipated the present structure and spread of PDS.
But the full picture is now before us, with the NSA leading a bevy of security laws.5 They have all been held constitutionally valid. No one would object to the constitutionality of the war waged against organised crime, for the unity and integrity of India, especially against home-grown insurrection or cross-border attacks or invasion. For, the protection of human rights and democracy are as much the constitutional obligation of the State as is its duty to maintain collective peace and security.
But terms “misuse” and “abuse” signify that the law is used for other purposes than for which power has been conferred. They simply denote acts of hijacking the law for processes of unauthorised custodial detention or treatment, abuse of official discretion and using it for ulterior motives—including political or personal vengeance.
The 177th Law Commission Report of 2001 estimates the number of preventive détentes (excluding Jammu and Kashmir) at 14,57,779. And a recent investigative report by The Indian Express found that “out of 120…petitions challenging detention orders under NSA between January 2018 and December 2020, the Allahabad High Court had quashed 94 detention orders, thus a 78.33% of all detention orders under NSA in a two-year period were found to be incorrect”.6
Obviously, these statistics tell us that something other than constitutional good governance is here afoot. Large numbers of Indians are arbitrarily consigned to custodial indifference, torture or cruel and degrading treatment, with occasional judicial intervention amelioration in individual cases. The judiciary seems, however, powerless to change the structures of governmental lawlessness and the ways of official deviance.
Security laws may be regarded as a necessary evil and even as producing social good. But constitutionally becoming judicial intolerance is the only apt response to this alienating and unconstitutional dual system of law.
Extraordinary powers may never be deployed for everyday use in order to bypass the constitutional administration of criminal justice. Perhaps, India needs now legislation similar to the recent US Democracy Act, passed by the House, aimed to “protect our democracy by preventing abuses of presidential power, restoring checks and balances and accountability and transparency in government, and defending elections against foreign interference, and for other purposes”.
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer
1 Erendro, is the convener of Manipur party, called the Peoples’ Resurgence and Justice Alliance (PRJA), is a Harvard alumnus holding a postgraduate degree in public administration and was closely associated with Irom Sharmila, well known for her 16 year-long hunger strike in protest against the Armed Forces Special Powers Act (AFSPA) implemented in Manipur for the past 60 years.
2The Court noted in Para 10 that: “The order of the learned Additional Sessions Judge dated 8 February 2021 indicates that he is being pressurized by the Superintendent of Police, Damoh, who, together with his subordinates, is attempting to pressurize the judicial officer. The judicial officer has expressed the apprehension that the accused who are “highly influential political persons” have raised false allegations against him and applied for transfer of the pending case which was dismissed by the District Judge after it was found to be false. The learned Additional Sessions Judge has apprehended that he may be subjected to an “unpleasant incident” in the future.” The court cites in footnote 10 the valuable analysis by M.P. Singh, Securing the Independence of the Judiciary – The Indian Experience”, Indiana International and Comparative Law Review 10: 2, 245-292 (2000).
4See for example as to USA,Alexes Harris, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor (2016); Mona Lynch, Hard Bargains: The Coercive Power of Drug Laws in the Federal Courts, (Becky Petit, Invisible Men: Mass Incarceration and the Myth of Black Progress 2012); all published by New York, Russell Sage Foundation).
5C. Raj Kumar,“Human Rights Implications of National Security Laws in India: Combating Terrorism While Preserving Civil Liberties Combating Terrorism While Preserving Civil Liberties “Denv. J. Int’l L. & Pol’y 33:195-222 (2005). To this list of legislations, must now be added the National Investigation Act, 2008.
6Scroll.in, July 28th, 2021