“We have to decide the legal question on when you have approached courts then how can you protest on the same issue.”A Supreme Court bench of Justices A.M. Khanwilkar and C.T. Ravikumar during oral arguments on 5 October.
The Oxford English Dictionary defines the word “question” as “a point or topic to be investigated or discussed; a problem, or a matter forming the basis of a problem”, or “a (subject of) debate, dispute, or contention.” It defines the word “legal” as “of or relating to law; falling within the province of law.”
It further defines a “question of law” as “an issue concerning a disputed point of law upon which a legal judgment or opinion is required.” By way of example, the constitutional challenge to the electoral bonds scheme – which the Supreme Court has refused to decide for the last three-and-a-half years, a point we shall come back to later in this essay – involves several legal questions, or questions of law.
On the other hand, me standing on my head might be questionable for my spine, but it is not a “legal question”, and tomorrow if the Supreme Court was to say that it was, it might face bigger questions with respect to its own reputation as an institution committed to safeguarding the rule of law.
Words matter. Words matter at all times, but they matter especially when the entity that is using them is the Supreme Court, with the constitutionally entrusted power to make and declare law and impact the lives of more than a billion people.
While it may be open to Humpty Dumpty to declare that “when I use a word, it means just what I choose it to mean”, it is not open to a constitutional court to behave in that fashion, unless it wishes to communicate to the public that it has no respect for its own role under the Constitution.
On page 2 of its order dated 4th October 2021, in the case titled Kisan Mahanpanchayat v Union of India, the two-judge bench of the Supreme Court (Khanwilkar and Ravikumar JJ) observes thus:
"After hearing learned counsel for the concerned parties and the Attorney General for India, we deem it appropriate to examine the central issue as to whether the right to protest is an absolute right and, more so, the writ petitioner having already invoked the legal remedy before the Constitutional Court by filing writ petition, can be permitted to urge much less assert that they can still resort to protest in respect of the same subject matter which is already sub-judice before the Court."
It is difficult to imagine a single paragraph that could contain more errors of law, logic, and morality. Let us break them down.
ERROR OF LAW 1
The right to peaceful protest is a fundamental right guaranteed under Articles 19(1)(a) and (b) of the Constitution. A right under Articles 19(1)(a) and (b) may only be restricted on the basis of the sub-clauses under Articles 19(2) and (3) of the Constitution (and, in certain exceptional cases with which we are not concerned here, on the basis of competing rights).
Articles 19(2) and 19(3) do not mention the word “sub-judice”, or any word that might be reasonably interpreted to mean “sub-judice”, as a basis for restricting the rights to freedom of speech and assembly. It is not open to the Court, under this Constitution, to invent new grounds for suppressing constitutional rights; indeed, that is not open to even the legislature.
ERROR OF LAW 2
There is no law that states that if I move court on an issue, I am deemed to have given up my right to protest on that issue (were a law to state that, it would be unconstitutional, but let us ignore that for a moment).
Under the scheme of Article 19, it is only the legislature that can, through laws, impose restrictions upon fundamental freedoms, whose constitutionality the Court is then supposed to review for compliance with Articles 19(2) or (3).
It is not for the Court to simply pronounce how citizens are or are not allowed to exercise their fundamental freedoms. Under our constitutional scheme, we have a Supreme Court, not a Supreme Censor.
ERROR OF LAW 3
A legal question is not a “legal question” if it has already been answered – and indeed, been answered by a larger bench. Khanwilkar and Ravikumar JJ entirely ignore the fact that a three-judge bench before it has already stated that the mere fact of approaching a judicial forum has no bearing upon the right to protest.
ERROR OF LOGIC 1
When a party goes to court to challenge a law, it challenges the constitutional validity of the said law. Let us assume that the Supreme Court upholds the law and rejects that party’s claims.
First of all, the Court might, quite simply, have gotten it wrong. History is littered with decisions that are not only wrong, have not only been admitted to be wrong, but indeed, have been so wrong that this Court has thought it fit to apologise for them.
The Court consists of mortals like you and me, who are fallible, even though orders such as these suggests that they may not think so.
To believe that taking a case to court is to submit to the judgment of heaven – from whose verdict there can be no dissent – is an astonishing presumption.
ERROR OF LOGIC 2
Secondly, assuming that the Court gets it right, once again, the challenge is only to the constitutional validity of a law.
Constitutionally valid laws can still be unwise, unsound, foolish, and reflect bad policy-making. Indeed, how many times has the Court insisted, while delivering judgment, that it is not commenting on the “wisdom” of a law?
That being the case, in what world does it make any sense for it to be even a “legal question” that taking a case to court somehow precludes people from protesting the law that has been challenged?
ERROR OF MORALITY 1
It is particularly grating to hear the Supreme Court express outrage over people protesting a law after taking it to court, given its own recent record on hearing important constitutional cases. Let us recall this record.
The Court took six years to hear the constitutional challenge to Aadhaar, during which the Aadhaar project became a fait accompli.
The constitutional challenge to the effective abrogation of Article 370 was filed on 7th August, 2019. Two years have passed. No judgment.
The constitutional challenge to the electoral bonds case was filed in 2018. Three and a half years have passed. No judgment.
When habeas corpus cases were filed after the events of 5th August 2019, then-Chief Justice and now-MP Ranjan Gogoi openly mocked the individuals who had filed them, and many of those petitions were not decided for months.
When, more than a year ago, the journalist Siddique Kappan was jailed by the UP police while on the way to report on the Hathras gangrape, then-Chief Justice Bobde repeatedly adjourned his Article 32 petition, and to this date, Kappan remains in jail without trial.
And apart from all that, what of the farm laws themselves? When the laws were challenged last year, the Supreme Court stayed them under highly dubious circumstances, without providing any substantive reasons for the same, constituted a committee and asked for a report, and after that, has taken no action on the case.
How can it be that in circumstances such as these – when there is no accountability regarding the disposal of crucial constitutional cases, and where non-decision directly favours the executive – that Khanwilkar and Ravikumar JJ now see fit to tell individuals that they cannot protest a law if they have challenged it before the Court?
This is not simply a moral error, it is arguably hypocritical.
ERROR OF MORALITY 2
We are living in a time where ambush PILs are a common feature of litigation before the Supreme Court.
Everyone knows what ambush PILs are – even the Court does: whenever a contentious law is passed, or contentious executive action is taken, within twenty-four hours, a half-baked, shoddily-drafted, and poorly-argued PIL is filed before the Supreme Court, a PIL that is crying out to be dismissed (with costs).
The strategic role played by ambush PILs is plain to see, not least that it leaves genuinely affected parties who may otherwise have chosen not to approach the Court with no option but to litigate: it is either that, or risk a contrary judgment in a thrown litigation.
In the context of this reality, the Court’s order is deeply disingenuous, suggesting as it does that the act of filing a case necessarily means that the parties have sworn off all other forms of (constitutionally protected) action legislation that affects their interests.
It should therefore be clear that the statement “whether … the writ petitioner having already invoked the legal remedy before the Constitutional Court by filing writ petition, can be permitted to urge much less assert that they can still resort to protest in respect of the same subject matter” is patently absurd.
The only “question”, rather, is how is it that the Constitutional Court can be permitted to urge much less assert that somehow, filing a case before it leads to an immediate loss of Article 19(1) rights of citizens.
Clearly, the only way in which it can urge and assert such a proposition is by assuming the power of Humpty Dumpty: by deciding that words mean whatever it chooses they must mean.
And in doing so, this two-judge bench of the Supreme Court exhibits complete contempt for the rights of citizens – the rights that it is ostensibly the guardian of – and, instead, aligns itself with State power in a way that only brings to mind the old phrase: “more loyal than the King.”
(Gautam Bhatia is an advocate and an author. This article was originally published on his blog Indian Constitutional Law and Philosophy. It has been republished here with consent with minor modifications. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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