Jurisprudence Shifts from the Rights Regime
“Public power shall never be exercisable arbitrarily or in mala fide manner”
This observation of Hon'ble Supreme Court in Maru Ram v Union of India (1980) has lost its relevance and significance in the light of recent trend where decisions have focussed on concentrating power in the hands of the executive.
There has been a clear shift from jurisprudence based on the rights regime. Judgments have been passed upholding arbitrary and mala fide uses of power by public officials while reducing the scope of judicial review. Inactions of the executive leading to gross violation of rights have been disregarded by the Court.
Such an attitude has resulted in the emergence of an unaccountable and uncontrollable executive which is exercising its power in a manner that resultsR in rule of anarchy instead of rule of law.
A fearless and uninfluenced judiciary exercising proper judicial control over executive actions is quintessential for upholding rule of law and for ensuring effective enforcement of the rights regime in the country. An independent judiciary and a strict separation of power between the three institutions of the state are essential constitutional principles which form part of basic structure.
However, any derangement of this system weakens the whole edifice of constitutionalism. It is a sure shot recipe for 'undemocratic functioning' of the country when the Apex Court which is duty bound to respect, protect and promote rights of every individual, starts causing cessation of those rights.
The Hon'ble Supreme Court, through some of its recent decisions, has acted against the principles of constitutional morality resulting in fragmentation of the rights regime. Instead of exercising control over the functioning of the executive, it has delivered decisions granting unfettered powers to them while omitting to take cognisance of their inactions.
Some of the decisions of the Hon'ble Court have gone to the extent of taking away legal and constitutional protections extended to the people under the existing jurisprudence and have exposed them to the mercies of the executive. The executive has taken this as an opportunity to exercise its politics of vengeance which has resulted in complete disregard to human rights and has resulted in legal chaos in the society.
The most glaring instance where the Hon'ble Court was pleased to grant wide discretionary powers to the police was the case of Vijay Madanlal Choudhary & Ors. versus Union of India & Ors., popularly known as the Prevention of Money Laundering Act (PMLA) judgment. While deciding upon the constitutional validity of the amendments introduced to the PMLA Act, the Court, in an unprecedented manner, overstepped and endowed upon the police such powers and authorities which are unimaginable under criminal jurisprudence.
The Act, which now has the sanctity of the Hon'ble Court, aims at achieving its objectives of prevention of money laundering by creating an anarchical regime wherein the alleged accused persons are stripped of all the legal protections. If police has 'reasons to believe' that a person is guilty of offences under the PMLA Act, they can arrest him/her without any formal written complaint and even in the absence of warrants. There is also no requirement of providing documents to the accused upon arrest to inform him/her of the grounds of arrest.
Hence, a person is arrested upon the whimsical understanding of an official (which could purely be based on his emotion of revenge from that person) that s/he has committed an offence without giving him/her any information or opportunity to defend himself/herself. Such unrestricted and wide powers of arrest are evidently arbitrary and prone to misuse by the police officials.
Guidelines issued by the Hon'ble Supreme Court with respect to procedural safeguards to be observed during arrest have been completely overlooked by this decision. Getting released on bail is also difficult due to the reversed burden of proof which presumes the accused to be guilty until proven innocent- a provision which runs in the face of basic rules of criminal law.
This Act, therefore, is nothing but a tool of harassment and oppression awarded to the executive while leaving no constitutional protection or safeguard to the people against executive excesses.
While strengthening the executive by awarding such wide powers on the one hand, the Hon'ble Court has, on the other hand, weakened the rights of the public to challenge the actions of the executive. Having completely forgotten that under the powers of judicial review courts are duty bound to hear challenges to actions of public bodies, the Hon'ble Court has taken up the task of punishing those who dare to bring forth any such challenge.
In Zakia Ehsan Jafri v State of Gujarat, the Apex Court of the country chided the Petitioner by terming the act of filing the case as "audacity to question the integrity of every functionary involved in the process". The court further observed that the Petitioners "need to be in the dock and proceeded with in accordance with law" which was immediately acknowledged by the police and with an alacrity which has never been seen in police functioning, a number of people were arrested on the very next day.
Such an act of reprimand leading to immediate arrest of Petitioners is an extremely dangerous sign as it underlines the court's approach towards silencing every opposition to government policies and actions. It clearly aims at curbing freedom of speech and expression. Every act of questioning the executive or challenging their functioning is going to be frowned upon and may result in dire consequences.
It leaves masses vulnerable to the actions of the executive. There are several examples from the past couple of years when police arrested hundreds of people who raised voices against government policies such as NRC, CAA and who are still languishing in jails waiting to be released on bail.
In the absence of any challenge to the executive action, there will be no question of accountability and the officials will be under no obligation to perform their duties. Moreover, in order to further shield the government, the Court has decided to treat government inaction or failure to take action as normal procedure and not considered worthy of any interference from the court.
In the case of Zakia Jafri, the Special Investigating Team appointed by the court had highlighted the fact that there were messages by the intelligence agencies indicating inaction or lack of effective measures by the concerned officials to respond to the riots despite clear warnings being given well in advance by the Intelligence Bureau.
These inactions of the state were termed as "spontaneous or isolated instances or events of failure of State administration to control the situation". Even with such allegations of extreme cruelty, harassment and instances of violation of rights, Court has taken every step to ensure protection to the state functionaries and to shield those responsible for breakdown of law and order. This could be a way to reduce pendency in courts, however, it, definitely, cannot be sustained in a civilised welfare state.
Such digressions from established principles of constitutional law and criminal jurisprudence on behalf of the highest Court of the country is lamentable. This judicial amnesia poses great dangers to any civilised society.
The limitless discretionary power accorded to the executive with no provision of challenge and no constitutional safeguards make mockery of the idea of constitutionalism and rights based jurisprudence. Judiciary, especially the Supreme Court of the country, needs to ensure that there is proper separation of power and judicial control over executive action to dispel shadows of anarchical rule.
Hon'ble Supreme Court must ensure that it is acting as the guardian of the rights of its people to protect them from any arbitrary and mala fide actions of the other branches of the government.
The Court needs to rise to the occasion to protect firstly, the Constitution from falling into disintegration and secondly, the masses which have been rendered vulnerable over recent years.
Kunika is an advocate in the Supreme Court. The opinion here is personal.