This blog has often spoken of judicial evasion. However, the Supreme Court on Monday, 11 May demonstrated that the discussion thus far had missed out a very important strand of the doctrine of judicial evasion.
Whether it be electoral bonds or federalism, judicial evasion till now appeared to be “Not Now” version, i.e. not deciding issues until it was too late for the outcome to matter. The Supreme Court showed us in its order regarding the restoration of 4G mobile internet in Jammu and Kashmir (the “Order”) that an even more potent version is the “Not Us” version: i.e. not simply Evasion by Adjournment, but rather, Evasion by Abnegation.
In substance, what the Court appears to have held is that the contentions of the Petitioner were to be adjudicated not by the Court, but by the “Special Committee” constituted by the Court, consisting of the Home Secretary and Secretary, Communications (of the Central Government) and the Chief Secretary of the UT of Jammu & Kashmir.
With great respect, it is submitted that it is difficult to reconcile the Order of the Supreme Court with the language of Article 32 of the Constitution of India. Article 32 says,
“The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed…
The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”
This Article has not at all been adverted to by the Supreme Court. It is respectfully submitted that given the existence of the fundamental right to judicial remedies, the most powerful court in the world is duty-bound to consider exercising its jurisdiction under Article 32. It is not competent for the Court to hold that some other body – especially one consisting of Secretaries of the very Departments whose orders are in question – should consider the contentions of the Petitioner and the “appropriateness of the alternatives”.
It was incumbent on the Court to itself consider the relevant materials; and adjudicate – one way or the other – on the validity of the challenged measures. In doing so, the Court would of course have had to consider how much deference to give to executive assessments in matters of national security and what the standards of judicial review should be.
It would then have been possible – whatever the Court ultimately decided – to consider and analyse the reasoning of the Court. However, “deference” cannot amount to “abnegation”; and the tenor of the Court’s order indicates that the Court was not simply “deferring” to an executive assessment of the facts, but was effectively ceding jurisdiction to decide issues of constitutional law.
In State of West Bengal v Committee for the Protection of Democratic Rights, a Constitution Bench of the Supreme Court had held that the power of judicial review by the high courts and the Supreme Court was part of the basic structure of the Constitution and was “essential to give practicable content” to the objectives of the fundamental rights.
With great respect, the Order does not take into account the significance of this position.
Putting National Security Over Fundamental Rights - Without Any Reason
In the Order, what the Court has essentially held is that due to “compelling circumstances of cross-border terrorism”, the Supreme Court must refuse to exercise jurisdiction under Article 32. In substance, then, the fundamental right under Article 32 (which is not simply a right to have some remedy, but a right to a judicial remedy before the Supreme Court) is a dead letter, in view of “compelling circumstances of cross-border terrorism”.
Given that the right under Article 32 cannot be suspended “except as otherwise provided for by this Constitution”, the Order demonstrates that the following statement in a previous post on this blog was entirely appropriate, “… there is no proclamation of Emergency, but the Court – on its own initiative – acts as if there exists an Emergency, and its orders reflect judicial standards that are uniquely applicable to the Emergency regime. And this, in my submission, is the most appropriate conceptual framework within which to analyse the Court’s conduct on the Kashmir petitions over the last two months – a framework that is now fortified by the State’s first formal statement to come on the court record.”
Before the Supreme Court, the Attorney-General placed reliance on the advice of the Privy Council in The Zamora, where Lord Parker stated,
“Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a Court of law or otherwise discussed in public.”
This statement was made in the context of deference by the courts to factual determinations by the executive when it came to issues of national security.
In its Order in the 4G case, what the Supreme Court has done is not simply defer to a factual determination of the executive. Indeed, it appears that the “factual” materials relied on by the Court (to which, at best, the above paragraph may apply) were in the form of a “Note” submitted by the Centre and the J&K government after the matter was reserved for orders.
This “Note” was – according to the Petitioner’s response – not supported by any materials on affidavit, ie, any proof whatsoever. But leaving that aside, what the Note claims is that “militancy has significantly increased in the recent times…” and gives instances of encounters and attacks which took place in the Kashmir valley in April and May 2020, to justify the need for internet restrictions.
However, as the Petitioner’s response pointed out, this was much after the internet restrictions had already been imposed in J&K. How do these events – which took place after the restrictions were in place – demonstrate the need for having the restrictions in the first place?
The “Note” also purports to rely on a report in The Print, about the Pakistani Army’s “Green Book” which (it is stated) calls for “information warfare”. (The Note only annexed the first print page of the news report, but the full report in The Print is available here.)
The statement regarding information warfare appears in an essay by a Peshawar-based journalist in the Green Book. Without needing to go into any factual dispute, even assuming that the Peshawar-based journalist’s suggestions were indeed acted upon by the Pakistani establishment (and indeed, it would be surprising if “information warfare” is not on the table at all in these times), the legal question is: does this factual basis justify the restrictions?
The Court makes no attempt whatsoever to answer this vital legal question. Nor does it consider that orders like this must be defended on the basis of the reasons recorded at the time they were passed ,and not on the basis of subsequent reasoning: orders are not like old wine becoming better as they grow older.
In any event, The Zamora, the case that the court’s judgment relies on, was a case involving the wartime requisition of copper from a ship headed purportedly to a neutral port, but claimed by the Government to be heading to an enemy port.
The issue turned on whether this requisition was urgently required for national security reasons or not. It is noteworthy that in the same case, it was also pointed out, “If the Court is to decide judicially… it cannot, even in doubtful cases, take its directions from the Crown, which is a party to the proceedings… It must itself determine what the law is according to the best of its ability, and its view, with whatever hesitation it be arrived at, must prevail over any executive order…” (emphasis added).
And on the facts, in The Zamora, the question was decided against the government because there was no evidence forthcoming about the purpose of the requisition. As the House of Lords in a later case clarified:
“These words were no abdication of the judicial function, but were an indication of the evidence required by the court. In fact the evidence adduced by the Crown was not sufficient, and the court ruled that the Crown had no right to requisition. The Crown’s claim was rejected “because the judge had before him no satisfactory evidence that such a right was exercisable”...”
The Zamora judgment consequently does not at all support the stand that it is open to the Court to effectively refuse to hear a petition alleging violation of fundamental rights on account of the perceived demands of national security.
Other than The Zamora (and of course, the decision in Anuradha Bhasin), the Court cites no authority whatsoever for the proposition that “national security” is a complete answer to a claim of violation of fundamental rights.
The Constitution Of the Special Committee; And a (forlorn?) Hope
Further, the basis for the direction to constitute a Special Committee of three secretary-level officers is also not entirely clear.
The questions raised before the Court about the need to restore 4G internet in J&K would require findings on issues such as (a) the appropriate standard of review, and (b) the validity on the restrictions on the fundamental rights in question. The Court itself appears to accept that “the submissions of the Petitioners, in normal circumstances, merit consideration.” These are, very clearly, issues requiring the application of a judicial mind.
These are, very clearly, issues requiring the application of a judicial mind. The Supreme Court has stated in Madras Bar Association v Union of India (per Nariman J., concurring):
“It is obvious that it is emphatically the province of the superior judiciary to answer substantial questions of law not only for the case at hand but also in order to guide subordinate courts and tribunals in future. That this is the core of the judicial function as outlined by the constitutional provisions set out above… All substantial questions of law have under our constitutional scheme to be decided by the superior courts and the superior courts alone…”
If the executive had stated that violations of fundamental rights will be dealt with by a committee of three Secretary-level officers, it is unthinkable that such a mechanism would be constitutionally valid – this would essentially amount to the executive deciding whether the executive got it right, with the government getting to be a judge in its own cause.
Perhaps the only way to save such a mechanism (although even that is doubtful) would be for the decision of the Committee itself to be open to question and the Supreme Court then undertaking a proper judicial review of such decision.
The Supreme Court’s Order grants no such liberty expressly permitting the Petitioner’s to come back to the Supreme Court; and the entire tenor of the Order with its focus of “national security” and “compelling circumstances” appears to suggest that whatever is held by the Committee will be effectively conclusive.
One of course hopes that that is not the case; that today’s Order ultimately is seen as ‘only’ Evasion by Adjournment (for a future Bench to re-consider after the Special Committee decision) and not the cementing of a culture of Evasion by Abnegation.
Conclusion
To conclude, it may be worth noting one further aspect. The Supreme Court’s admission in the Order that the submissions of the Petitioner merited consideration “in normal circumstances”, but its ultimate holding that those submissions cannot be considered by the Supreme Court in view of “compelling circumstances of cross-border terrorism”, is particularly striking.
In A v Secretary of State for the Home Department, Lord Hoffman (himself not particularly averse to giving a long leash to the executive in matters of national security) observed:
The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve…
One is forced to wonder: have we reached a situation where we run the risk that this quote becomes an accurate summary of the present?
(Mihir Naniwadekar is an advocate practicing in Mumbai. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses, nor is responsible for them. This post originally appeared on the legal blog Indian Constitutional Law and Philosophy. It has been republished in a condensed form with permission.)
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