Disturbing signals
Recent cases suggest that the judiciary is failing in its primary duty of putting a check on the excesses of the executive.
“The power of judicial review is an integral part of our constitutional system and without it, there will be no government of laws and the rule of law would become a teasing illusion and a promise of unreality. The judicial review, therefore, is a basic and essential feature of the Constitution and it cannot be abrogated without affecting the basic structure of the Constitution.”
—Supreme Court in R.K. Jain vs Union of India
(1993 AIR SC 1769)
COURTS ARE EXPECTED TO DEFEND THE constitution. In liberal democracies, whenever the actions of the executive are excessive and pose a threat to civil liberties, the judiciary is known to be the first and foremost intervenor. This is the foundation of judicial review. However, this premise is now under challenge. Various recent trends in the Supreme Court suggest that the court is failing in its counter-majoritarian function.
In the latest display of executive overreach, the houses and buildings of Muslims were demolished in various parts of North India, especially in the Bjp-ruled States of Madhya Pradesh, Uttar Pradesh, and Gujarat. Demolition drives also took place in Delhi. Violations of encroachment laws were alleged by the State authorities, without citing specific details. In some States, those who participated in agitations against the government were targeted. In this highly selective exercise, no prior notices were issued, no reasons were given, and no due process was followed before the buildings were bulldozed.
The Jamiat Ulama-i-hind moved a petition against the demolitions in UP. The Supreme Court did not make any effective intervention, although it was clear that the state action violated the settled principles of natural justice such as the right to be heard and the right to prior notice. No interim stay was granted to put an end to the demolitions, which continued seamlessly.
This is part of a long-term tendency of the court to evade cases. The strategy continues in matters like the constitutional challenge against electoral bonds, revocation of special status to Jammu & Kashmir, and demonetisation. Many of these, such as the litigation against demonetisation, have now become irrelevant with the passage of time. Instead of a vigilant court that is quick to intervene in matters warranting urgency, the judiciary has often remained a mute spectator. In the few cases that the court did manage to hear, we see an inversion of various settled principles of law. In Madanlal Choudhary vs Union of India (2022 Livelaw [SC] 633), the constitutionality of various provisions in the Prevention of Money Laundering Act (PMLA), 2002, was assailed.
PROBLEMATIC PROVISIONS
The safeguards in criminal law are essential to the guarantee of personal liberty. Criminal laws envisage punishments of imprisonment, staking one’s life and liberty. Judicial examination of criminal laws must be done with caution so that well-founded principles of protection of individual rights are not infringed upon.
In this context, the PMLA has several problematic provisions backtracking from established principles of criminal law. Presumption of innocence is a well-known principle of criminal law: unless and until guilt is proven beyond reasonable doubt, the personal liberty of the accused cannot be curtailed. Section 24 of the Act, however, says that when an accusation is made, the court shall presume that the proceeds of crime are associated with money laundering. This provision, as the petitioners
rightly argued, replaces presumption of innocence with the presumption of guilt. Such a blanket provision in a criminal law has far-reaching repercussions, often making it difficult for the accused to prove innocence when the statute instils a presumption. The court, however, upheld its constitutionality by stating that the provision “has reasonable nexus with the purposes and objects sought to be achieved” by the statute.
Our criminal justice system considers confessions made to the police as inadmissible in law, based on reasons of prudence. However, according to Section 50 of the Act, another problematic provision, statements of those summoned are recorded and allowed to be used by officers against the accused persons or the person who is summoned. This paves the way for extracting incriminating statements. This provision is diametrically opposite to the guarantee against self-incrimination in Article 20(3), and the right to life and personal liberty under Article 21.
However, this challenge too was brushed aside by the court reasoning that the authorities under the Act are not police officers and hence, “the statements recorded by authorities under the 2002 Act, of persons involved in the commission of the offence of money-laundering or the witnesses for the purposes of inquiry/investigation, cannot be hit by” the fundamental rights of the Constitution. But this is troublesome. One the one hand, the officers are not considered police officers. On the other, the statements to these officers can still be used as permitted by Section 50. As lawyer Nitya Ramakrishnan argued in an article published in The Wire (August 3, 2022), this leads to an uncertainty where the officer “may or may not be ‘police’ as chance dictates”.
It is worth noting that the Supreme Court does not have a promising legacy when it comes to declaring criminal laws—especially anti-terror legislation—unconstitutional. The constitutional challenge to the Terrorist and Disruptive Activities (Prevention) Act, 1987, was turned down by the apex court in Kartar Singh vs State of Punjab (1994 [3] SCC 569). The plea against the Prevention of Terrorism Act, 2002, was repelled by the court in People’s Union for Civil Liberties vs Union of India (2003 [4] SCC 399). In Naga People’s Movement of Human Rights vs Union of India (AIR 1998 SC 431), the court rejected a challenge to the validity of the Armed Forces Special Powers Act, 1958.
The judgments which uphold palpably unconstitutional laws, often accompanied by poor judicial reasoning, deserve criticism not only for being bad judgments. They end up undermining the legitimacy of the institution. In addition, these laws often achieve an “illusion of legitimacy” after the highest court in the country validates them. This must be read along with how authoritarian governments or political parties use them to argue in favour of the law and continue its selective application. The case of PMLA is no exception.
PENALISING THE PETITIONER
Typically, the court does not go beyond the questions essential to deciding a case. Judges are not to travel beyond the scope of the case in the task of adjudication. Therefore, typically, in any case before the judiciary, when relief is sought by the petitioner, it is either granted or denied, with no scope for exceeding the brief. This allows litigants to bring forth their claims freely.
In 2009, a public interest litigation was moved by Himesh Kumar seeking an independent inquiry against the officers for the alleged killing of 17 Adivasis in Chhattisgarh. The petition relied heavily on the testimonies of witnesses, including family members of the deceased. The court was called upon either to accept or reject the plea. The court dismissed the case but went ahead and imposed a fine of Rs.5 lakh on the petitioner for initiating the litigation. Further, it allowed the Union government to entrust an investigative agency to probe into the circumstances that led to the filing of the petition.
Penalising litigants in this way is a disturbing signal. The right to approach the Supreme Court has been promised as a fundamental right under Article 32 of the Constitution. Punitive treatment of litigants has a direct adverse impact on this right. It produces a chilling effect in litigants with legitimate grievances—they will be wary of bringing forth rightful claims against a mighty state. The state is then effectively shielded from adversarial litigation and gets a free hand in executive actions.
Legal scholars David Landau and Rosalind Dixon have proposed a paper with a striking title: “Abusive Judicial Review: Courts Against Democracy” (53 UC Davis Law Review 1313, 2020). They argue that there is a contemporary global trend where courts have begun to “attack the core of electoral democracy”, often by upholding unconstitutional pieces of legislation and illegal actions of the executive or aiding the majoritarian government in its efforts to silence dissent. The Supreme Court is dangerously close to being a textbook case for their study. It must guard itself. m Thulasi K. Raj is a lawyer at the Supreme Court of India.