By Dr S. Saraswathi
(Former Director, ICSSR, New Delhi)
The Supreme Court on 17 December 2020 observed in the case relating to farmers’ protest that farmers have a constitutional right to protest peacefully, but no right to slip into violence and damage public property. This stand on protests is being repeated several times by the Supreme Court and many High Courts that ordinary citizens get sick and tired and begin to sympathise with the plight of judges having to deal with forces that defy their rulings and forced to hear similar cases again and again.
A Bench led by Chief Justice of India Sharad A. Bobde has clarified in its verdict that the SC “will not interfere with the protest” which is indeed part of a fundamental right and “there can certainly be no impediment in the exercise of such rights as long as it is non-violent and does not result in damage to the life and properties of other citizens”. People with some common sense can agree that road blockage by farmers on dharna for many weeks preventing commuters from using roads causes damage to life and livelihood.
Under the pressure of circumstances, the Bench gave equal stress on the right to protest of farmers and the obligation to conduct it peacefully without intruding into the right of others to carry on their normal activities. It asked the Union Government to consider deferring implementation of the farm legislations as a step towards resumption of dialogue with opposing agricultural unions. The Bench also pointed out to farmers’ unions that talks were necessary to find a solution. But no way out of the situation has been found so far. The Supreme Court’s suggestion for setting up a new committee is rejected by the farmers insisting on withdrawal of the three Farm Laws. It is a big challenge to the authority of the Supreme Court.
Recall, in February this year, the Kerala High Court banned strikes and protests in educational campuses in that State after examining 25 petitions from institutions on loss of working days. The court has made it clear that it is the right of students to study and hence other students cannot forcefully prevent this by unleashing protests. Significantly, the court has said that the authorities can take the help of the police and also take legal steps against those who violate these directions thus rejecting the long-standing view that police cannot enter the premises of educational institutions for policing.
Apart from obstinate litigants as in the case of the farm laws, the Supreme Court faces problems from other sources including high courts. A few days ago, dealing with a number of habeas corpus petitions, it had to stay an order of the Andhra Pradesh High Court which sought to initiate a judicial enquiry into the question whether there is a constitutional breakdown in the State machinery requiring promulgation of President’s rule. The State Government’s contention is that the High Court order is a “serious encroachment” on the constitutional powers of the executive and a violation of the principle of separation of powers. The on-going tussle between the Government and the judiciary has landed in the Supreme Court though no complicated constitutional issue is to be settled.
The Supreme Court in India has original, appellate, and advisory jurisdiction. It has extensive original jurisdiction which extends to any dispute between the Government of India and one or more States; or between Union Government and any State (s) on one side and one or more other States on the other; or between two or more States.
It has wide appellate jurisdiction over any decree or final order of any high court in India in civil, criminal or any other proceeding if the high court certifies that the case involves substantial questions of law on the interpretation of the constitution. Even if the high court does not give such a certificate, the Supreme Court at its discretion give special leave to appeal under Article 136 of the Constitution from any judgement, decree, sentence or order in any case involving substantial question of law or interpretation of the Constitution.
Additionally, the SC has advisory jurisdiction in matters which may specifically be referred to it by the President of India under Article 143 of the Constitution. IT Act, Excise Act, Gold Control Act, Contempt of Court Act, Representation of People’s Act and many others have also vested the SC with advisory role. It can also suo moto take up certain cases. The apex court can review its judgements or orders – a provisions used extensively in recent times. Parliament by law can enlarge the jurisdiction of the Supreme Court to any matter in the Union List.
The Supreme Court is so burdened with cases and some of them are so urgent that it is often disturbed at nights also. Justice Nariman once remarked: “Burden on us is crushing. Please go before a vacation bench”. Governments, political parties, and political activists are increasingly resorting to legal solution to political problems.
There is an undesirable trend among Opposition political parties at the Centre and States to challenge every decision of the government in courts. It is a way of delaying/stopping implementation of decisions, and carry on adverse propaganda against government decisions. This trend pushes the legislative bodies to the background and elevates public roads and public places as the venue to express views on an issue and to build public support – a development that directly drags the police and the judiciary to the scene. And more and more cases are filed in courts and police-public clashes become common.
India is in the midst of changing times like many other countries. Perhaps, it is an expression of frustration on the decline of leftist thinking all over the world and emergence of right-wing parties. In this political evolution, the role of judiciary as an independent and impartial organ of the government becomes crucial. Pressure mounts on the judiciary to safeguard its independence as well as the principle of judicial restraint.
While dealing with hate speeches in the context of Delhi riots early this year, the Supreme Court candidly admitted that it was feeling the “pressure” of the circumstances and “cannot handle the pressure”. The CJI is reported to have observed: “We are not saying that people should die. We cannot stop things from happening. We cannot give preventive reliefs. We feel a kind of pressure on us. We can only deal with a situation after it occurs. The kind of pressure on us …it is like the court is responsible. Courts come on the scene after it is done and courts have not been able to prevent such a thing”.
Can we allow public perception of judges as neutral persons concentrating on upholding law and justice to change as a pressurised lot experiencing only stress? There was a time when judges were venerated and judiciary considered irreproachable. Today, not only judgements but also judges are criticised and at times even threatened. We trust that the judiciary is capable of handling the stress. As it has no financial or executive power, it has to be stress-free to maintain independence. – INFA