“A judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer.”Clause 3.1 of the Bangalore Principles of Judicial Conduct 2002
This principle of the Bangalore Principles of Judicial Conduct, is worth paying attention to when we consider the way in which the Supreme Court of India has dealt with one of the most controversial pieces of legislation in the history of India: the Citizenship (Amendment) Act 2019, commonly known as the CAA.
Please note the words “above reproach” and “reasonable observer.” The touchstone of testing the conduct of a Judge is the viewpoint of a reasonable observer – not just in some whimsical ideal, but in the code of conduct adopted by the higher judiciary in India for two decades now.
And what would a ‘reasonable observer’ say about the way in which the Supreme Court of India has failed to list and hear the record number of writ petitions filed challenging the constitutionality of the CAA?
Is the dissatisfaction and criticism with the court’s approach, that has seen it drag its heels and failed to list the main batch of petitions since 22 January even though it was supposed to list it after four weeks, reasonably above reproach?
Does this conduct of the court – following its lethargy in taking up related issues over the treatment of protesters against the law when it was enacted a year ago – “reaffirm the people’s faith in the integrity of the judiciary”, as the judges are required to do under Clause 3.2 of the Bangalore Code?
I cannot overstate the importance of faith in the judiciary, which has been the last hope in the worst of circumstances. And so it becomes incumbent on us to examine these questions carefully, and see if our apex court has lived up to its own lofty standards.
Understanding the Timeline of the CAA Challenges
Sometimes it is useful to look at a timeline to understand the full implications of a particular course of action, so let me go over the relevant dates.
12 December 2019: One year ago, the President of India gave his assent to the CAA, which had been passed in both Houses of Parliament a day previously. There was a wide outcry against the CAA, even before its enactment, because of the way it dragged religion into the question of citizenship and the threatened ‘chronology’ with which it would dovetail with the proposed nationwide NRC.
On 12 December 2019 itself, the Indian Union of Muslim League filed the first petition in the Supreme Court against the CAA challenging its constitutionality. It was soon joined by nearly 140 petitions (which have now risen to close to 200) challenging its provisions.
The main plank for objections against the CAA is that in excluding non-Muslims from Afghanistan, Pakistan and Bangladesh from the ambit of illegal migrants and creating a special fast track for citizenship for them, it violates Articles 14 and 21 of the Constitution. Article 14’s protection of equal treatment applies to all ‘persons’ subject to India’s laws, not just Indian citizens, as does Article 21’s guarantee of the right to personal liberty and dignity.
Excluding people of one faith from those three countries when ostensibly helping those facing religious persecution, goes against the Constitution as even some people from that faith have faced persecution in those countries. If the basis was religious persecution, therefore, then there was reasonable cause except bias to leave them out. Additional questions of arbitrariness were also raised over the limitation of the CAA’s special treatment to those three neighbouring countries and not others.
13 December 2019: The Jamia Teachers Association in Delhi took out a protest march against the CAA, with multiple other protests following. The Assam Students Union filed the first of the petitions against the CAA from the northeast, which had seen huge protests against earlier attempts to bring this law to fruition.
14 December 2019: The Shaheen Bagh protest site came up on 14 December 2019. The Jamia Millia Islamia university premises were raided by the Delhi Police on 15 December 2019, with students assaulted, arrested and charged for alleged rioting. The Chief Justice of India turns down a request for directions against police brutality in Jamia and other universities across the country like AMU.
18 December 2019: The writ petitions against the CAA are listed before a bench comprising the Chief Justice of India and two other Hon’ble Judges. The Court issues notice to the Respondents as also notice to Attorney General. Notice to Union of India was dispensed with because a Counsel had made an appearance. The Court makes notice returnable by 22 January 2020, meaning thereby that the Respondents were expected to be present by then.
16 January 2020: The Indian Union of Muslim League and other petitioners file an application asking the court to put a stay on the CAA, which had been notified on 10 January.
22 January 2020: The petitions are listed again. Senior advocate KK Venugopal, the Attorney General for India, prays for and is granted four weeks to reply to the petitions on behalf of the Union of India. The judges say that the petitions should be listed after that (in the fifth week from the order).
In order to keep the narrative clear, it should be noted that this meant the Centre’s affidavit replying to these petitions was supposed to be filed on 22 February 2020, with the case to be listed sometime around then.
27 January 2020: Union Home Minister Amit Shah, campaigning for the impending Delhi elections, makes a speech asking for people to push the ballot button so as to give an electric shock to the protesters at Shaheen Bagh. BJP leaders Anurag Thakur and Parvesh Verma give objectionable speeches vilifying the protesters as well – but the AAP still wins the Delhi elections.
February 2020: The protests against the CAA, including at Shaheen Bagh, continue unabatedly.
23 February 2020: BJP leader Kapil Mishra, following on from a previous speech on 20 December, gives an incendiary speech against the anti-CAA protesters.
23-26 February 2020: Communal riots take place in East Delhi in which persons of both communities killed, their houses vandalised and burnt, and they are rendered homeless.
17 March 2020: The Centre finally files its counter-affidavit against the CAA petitions, nearly one month late. They argue that the CAA was a benign piece of legislation, did not impinge on any existing right, was not arbitrary, and that the policy of which people it would benefit or not was not subject to judicial review.
At no point in February or March did the Supreme Court list the anti-CAA petitions, despite its earlier order. Neither have they been listed in the nearly nine months since.
How Serious is the SC’s Failure to List the CAA Cases?
I have no intention of encroaching on the jurisdiction of the lawyers who are set to argue this case or the judges who will have to decide it. The merits are for them to get into, but I have questions about why the writ petitions were not listed as directed by the court on 22 January.
I am given to understand by counsels appearing on behalf of the petitioners that several times the apex court was urged to hear the matter but the prayer was not accepted. They were told that a Constitution Bench would hear the matter after the review of the Sabarimala matter was heard.
It is evident from the timeline that while matter was kept pending in the Supreme Court, the whole country was on the boil. The court was aware of the discontent the Act had caused – but despite this, it failed to take any steps to address this.
In the aftermath of the Delhi riots, this failure to act took on a fresh dimension: If the court had heard the matter as scheduled, if it had demonstrated some interest in addressing the concerns of all those who were opposed to the CAA (and those opposed to them), could the riots have been avoided?
But of course the first question to be asked here is how significant the court’s failure to list the matter was.
We know, even after the infamous ‘Master of the Roster’ case, that the Chief Justice of India is the administrative head of the Supreme Court, having no additional legal edge over others. He is, if I am not mistaken paid a little extra for it and enjoys a higher status in protocol and perks. No more than that.
So, in effect what happens is if a judge posts a matter on a certain day passing a judicial order as per the norms, even the Chief Justice cannot ignore it by an administrative order. And if the Registry fails to list a case despite a judicial order the registrars could be hauled up for contempt because they have obstructed the course of justice.
So, when the Chief Justice himself had specifically directed that the matter be listed in the fifth week after 22 January 2020, there was no reason why it should not have been listed. Indeed, it was the duty of the Court to call for an explanation as to why the matter was not listed and from experience I can say that this is what most judges routinely do.
However, my junior colleagues of the Bar inform me that the Supreme Court does not always follow this rule and it has become a matter of routine that cases are not listed when they are supposed to, despite a judicial order. When the counsel goes to inquire, from the Registry he is told that he has oral orders not to list it.
So, in effect, the Supreme Court’s status as a Court of Record, where the records of proceedings are meant to be unimpeachable, has been demoted to one of a Court of Oral Orders.
This, I reckon, is definitely lowering the standards of the justice delivery system which we hold sacrosanct.
It is true that the courts have the discretion to follow their own rules of business, and to modify how they operate, but there is a reason why uniformity and certainty in these matters are vital. A uniform procedure makes the law efficient and prevents abuse and ensures that people are treated equally. If there is no uniformity and certainty to the listing and hearing of cases as scheduled by the court itself, it puts itself at high risk of falling into disrepute.
Did the Judges Have a Duty to Hear These Petitions Expeditiously?
In an excellent article in the SCC Journal in 2012, Justice RV Raveendran, a former and very well respected judge of the Supreme Court, explained how he thought the judges needed to interpret their obligations under the Bangalore Principles of Judicial Conduct:
“A Judge’s duty is to render justice. Rendering justice, in a larger sense, means giving every person, his or her due. All those entrusted with power—power to govern, power to legislate, power to adjudicate and power to punish or reward—in a sense, render justice. In the context of Judges, rendering justice, means speedy, effective and competent adjudication of disputes and complaints in a fair and impartial manner, in accordance with law, tempered by equity, equality and compassion wherever required and permissible, after due hearing.”(emphasis added)
Taking the timeline set out earlier into account, I find that the dissatisfaction and criticism of the apex court for its failure to expeditiously hear the CAA petitions, and indeed many other matters of national importance, is certainly not an unreasonable viewpoint.
When a person out of his free will, consents to be a judge he enters into a contract with the nation, comprising of his fellow human beings to deliver justice. He cannot back off at whim or caprice, and the court’s discretion when it comes to listing of cases cannot be an excuse to indulge in such behaviour.
The discretion given to a judge is not to be confused with a supreme command – it is not unbounded, granting him the freedom to be reckless with it. It remains subject to obligation, which in legal terms means that the judge has to consider not just his duties, but also the rights of those who look to him for justice.
In my opinion, the court’s awareness of the explosive situation regarding the CAA –from the long, committed protests in multiple cities in opposition to it, to the incendiary remarks by members of the ruling party against those protesters, to the concerns of those who felt their lives were being unfairly inconvenienced by the protesters – only added to its obligation to hear the cases expeditiously.
Yes, the Executive is the body which administers the State and it is the Executive which is supposed to take such action as required to run it peacefully and efficiently. Yes, it is the primary duty of the Executive to take preventive measures necessary to prevent things spiralling out of control. Yes, Courts cannot and should not take over the Executive functions of the State.
But what happens when the when the Executive fails to protect an ordinary person and they therefore turn to the Court to seek refuge? Because that is what, in effect, those challenging the validity of the CAA were doing, trying to give a legal form to the pleas of those who braved the cold winter’s nights to make their voice known to a government which ignored them.
The rule of necessity is not merely one to be invoked by the courts as a defence, it can also be used to take action. Indeed, our Courts have had a long and glorious history of stepping in to safeguard the rights of the people when it was necessary.
This does not mean that the Supreme Court had to immediately rule in favour of the protesters. This does not mean that they had to strike down the CAA and chastise the government.
But it did mean that they should have put themselves in a position where they could take any actions necessary to protect the people of India, to whom it owed a duty, to reaffirm the people’s faith in the judiciary’s integrity.
Unfortunately, the court’s failure to list the cases for all these months, let alone consider the applications for stay or the merits of the petitions, means it has failed to live up to its own lofty standards and traditions.
(Justice (retd) Anjana Prakash is a former judge of the Patna High Court and practices as a senior advocate in the Supreme Court. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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