Death of an infant at the Shaheen Bagh protest site, Delhi has been taken ‘note’ of by the Supreme Court of India. The Court has taken up the matter with the cause title of the case (initiated suo motu) being: “In re To Stop Involvement Of Children And Infants In Demonstrations And Agitations In View Of Death Of An Infant On 30.01.2020 At Shaheen Bagh New Delhi”. The title itself betrays the bias inherent in the judges’ minds. The outcome of the proceedings is a foregone conclusion given the way the rational voices of some advocates were suppressed with sentimental outburst by judges. The case was initiated after a twelve year old wrote a letter on the issue – which was widely reported in the mainstream media on 05.02.2020 – to the Supreme Court! This raises many questions. A knee jerk reaction by a 12 year old to an issue is condonable but not that of the Supreme Court. But this has now become the norm. The Supreme Court receives thousands of letter petitions every month. Why pick this one for urgent hearing? In fact the Court restrained itself from hearing the matter for a few days only in view of the assembly elections in Delhi on 08.02.2020. Next day being Sunday the Supreme Court lost no time and on 10.02.2020 it issued notice to the Union of India and the Government of NCT of Delhi. Such amazing speed is rarely witnessed in the hallowed corridors of justice in India. In a country where on an average 1,975 infants died every day in 2018 why is the SC showing such concern over one child’s death? Needless to say that the tragic death of the child itself had nothing to do with the visits made to Shaheen Bagh with his mother. The child was probably better off there than in the plastic shanty in which his family lived. Should children be stopped from getting admitted in a hospital when sick because over hundred infants have died recently in a hospital in Kota, Rajasthan!
Recall that the principles of natural justice are essentially meant to ensure a fair hearing in all judicial and quasi-judicial proceedings and these should not be bypassed. The concept encompasses two rules:
(i) nemo judex in re sua, i.e. the authority deciding the matter should be free from bias; and
(ii) audi alteram partem, i.e. a person affected by a decision has a right to be heard.
Again the legal position is well laid down that the courts do not decide academic questions. Yet the Supreme Court has proceeded to do just that in the review petitions filed against the Sabarimala judgement. The order dated 10.02.2020 states that for “reasons to follow, we hold that this Court can refer questions of law to a larger bench in a Review Petition.”
The Court has framed the following issues for consideration:
- What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
- What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
- Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
- What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
- What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
- What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
- Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?
These questions are not urgent in nature. The Court has pre-decided the issues which again betrays its bias. It is indefensible not to give reasons while passing this order. The outcome of a reasoned judgement could have been different. Why was it in such a hurry? And why should the 9 judges of the Apex Court spend time in hearing these petitions when important and urgent issues like the Citizenship (Amendment) Act, 2019 and the Jammu and Kashmir Reorganisation Act, 2019 and related notifications are pending adjudication. There are many other important constitutional matters lying in cold storage in the Supreme Court for decades.
It seems that the Supreme Court of India is bending over backwards to help further the majoritarian agenda of the Hindu right wing central government. Judiciary historically has colluded with fascist regimes. What we are witnessing now in India is therefore not a new phenomenon. In such times we have to be very, very wary of the judiciary. It cannot be depended upon to fulfil its constitutional mandate of protecting the fundamental rights of the citizens of India.
Secondly, the case pertaining to the death of an infant at Shaheen Bagh and review of Sabarimala judgement (and numerous other cases) fall under the category of Public Interest Litigations. PIL has become a very powerful tool to further the right wing Hindutva agenda. Even before the legislative abrogation of Article 370 in August, 2019 the Supreme Court was entertaining many petitions to strike down the same. In 2000, I did a detailed study which critically examined the PIL judgements of the Supreme Court of India through the last two decades of the twentieth century in the light of the principles of natural justice and came to the conclusion that the poor and the working class have been adversely affected by them. PIL by its very nature is unconstitutional and undemocratic. The crucial issues for which social, political & legislative solutions are required get argued and decided in court rooms by a few lawyers and judges. PILs also subverts people’s movement as battles are fought in the court rooms instead of public domain. So far there has been no honest introspection by rights activists and lawyers on the adverse impacts of PILs. Just one PIL by M.C. Mehta resulted in one million workers losing their jobs in industries in Delhi! However, it seems that it is already too late to put the genie back in the bottle!
[References: 1. Visit http://www.sacw.net/article11105.html for an abridged version of my report titled “The Public Interest Litigation Hoax – Truth Before the Nation; A Citizen’s Report on how PIL fails to provide justice to those who need it most” published in April, 2005 by PIL Watch Group.
- Visit https://theprint.in/opinion/how-judiciary-helped-hitler-and-stalin-in-destroying-political-opposition/285057/ to read more on judiciary during fascist regimes]
Shobha Aggarwal is a Delhi based lawyer and rights activists.
Email: [email protected]