This is a continuing series in which prominent individuals comment on the Covid-19 impact on life in various sectors. —EDITOR
overnment notifications on management of COVID-19 lockdown do not concern functioning of courts. In the order of priority, it is not clear where courts stand – is justice delivery essential or non-essential? It is possible that government expected the apex judiciary, a separate organ and sometimes valued for its independence, to colour code its own operations. But this has not happened. Instead it gave itself room for adopting –ad hoc — protocol for listing urgent matters. Arnab Goswami is a prominent beneficiary of such a protocol.
Some high courts may have allowed themselves space for ad hoc listing of cases, in these times of closure; but, for most high courts, urgent matters are those that relate to petitions for grant of bail and writs of habeas corpus. Habeas corpus petitions essentially challenge unlawful confinement, whether in prison or private custody. Yes, most high courts still consider habeas corpus petitions to fall within that urgent category, which calls for immediate hearing and disposal. They follow settled judicial conscience, unlike the previous time when Chief Justice Ranjan Gogoi in Supreme Court refused to hear such petitions filed on behalf of the Kashimiris. Then, it was the Ram Mandir and retirement of the Chief Justice that took precedence. Without internet (Netflix) and mobile connectivity, Kashimiris suffered a more brutal lockdown from August 5 last year, after effective abrogation of Article 370.
On the issue of displaced Indians (commonly called migrants), the narrative is a little different. When the Supreme Court was urgently approached in the midst of the current pandemic, the matter was listed and heard but then a decision on this was deferred by three weeks. Finally, it was disposed of without an effective order. Displaced Indians were left to their fate, with a full understanding that fate today is controlled by batons wielded by a police-state. Later, Chief Justice Sharad Arvind Bobde stated in an interview to a newspaper that, “[t]his is not a situation where declaration of rights has much priority or as much importance as in other times”.
This statement was condemned by many on the ground that it mirrored the court’s majority judgment (4:1) in ADM Jabalpur, 1976, when the court, during, upheld suspension of judicial review against violation of fundamental rights. Justice HR Khanna gave his monumental dissent. Legal historians are unanimous that this dark blot on the Supreme Court was finally erased in 2017 in KS Puttaswamy (the Privacy case). Justice Kaul, while supporting the formal overruling of ADM Jabalpur, expressed “the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection”. Though resurrection may not have happened, the ghost of ADM Jabalpur is now visible to few.
Arrogaya Setu – a pandemic-linked introduction, has the potential of invading the fundamental right of privacy, while empowering the police-state to wield a new digital baton. The Supreme Court’s willingness to deal with this invasion, among others, in times when personal liberty is lost to centralised state power, will determine whether the majority spirit of ADM Jabalpur has been truly exorcised.
Justice delivery across the country stands effectively suspended now, and this is a situation without any parallel. The pandemic has exposed digital India’s biggest deficit. Delivery of targeted benefits in the form of subsidy has precedence over justice-delivery. Though some corrections will take place, lost time and delayed justice, put together, has significant human and economic cost. But who’s counting?
The writer is a senior Supreme Court advocate in New Delhi.