The role of constitutional courts
Only the courts can provide oxygen to the system to make the government and institutions accountable
Our Constitution delineates both the powers and responsibilities of institutions and those who govern them. This institutional edifice must be protected. If not, those manning the institutions, by their actions, are likely to cater to their enervation and eventual decimation. Today, we are seeing that happening before our eyes. We are ourselves to blame for not raising our voice and calling to attention the malaise that has set in.
Our fundamental rights are set out in Part-III of the Constitution. Under certain circumstances, they are subject to legislative curtailment. Equality before the law is a fundamental constitutional premise, prohibiting discrimination on grounds of race, caste, creed, religion, place of birth and sex, subject to the caveat that the disadvantaged may be empowered by acts of positive discrimination.
Other rights, fundamental to our existence, including freedom of speech, freedom to form associations, to move throughout the territory of India along with the right to carry on any profession, trade or business, are subject to regulation. They need to be protected from unreasonable legislative and executive interference.
Today, our lament is that constitutional courts obliged to uphold these rights have, in recent years, often been lethargic and occasionally remiss in protecting citizens from legislative and executive excesses. Any matter before the court, apart from pure personal inter-party disputes, involves individuals and the State. We can assume that in that equation, the State represents power and the aggrieved individual, its target, is relatively powerless. In this context, the largest litigant in this country is the State, as also the most powerful. The role of a court in deciding such disputes must not just be stated but assessed in the context of its performance in recent years.
There is no point in having a judiciary in which the judges do not have a liberal mindset. A judge with a conservative disposition is acceptable but not an illiberal judge. Such a judge should not find a place at least in our constitutional courts. A judge with a statist mindset ends up helping the powerful and failing to protect the weak. This does not mean that individuals should be protected, despite their open flouting of the law. It only means that courts should scrutinise the exercise of power by the State on the touchstone of reasonableness, and that the extent of its exercise of power is proportionate to the outcome sought to be achieved. The court must not allow it to be misused to emasculate individual freedoms.
A judge who accepts statements by the State without adequate scrutiny does a disservice to his oath of office. The actions of the powerful must be scrutinised to ensure compliance with laws that are reasonable. An unreasonable law upheld by the court itself amounts to denigrating the freedoms we cherish. Laws that presume the guilt of a person, that unfairly shift the burden of proof, that prohibit the grant of bail unless the court believes the person prosecuted is innocent, are laws that are ex-facie unreasonable. They need to be scrutinised.
Executive actions misusing provisions of the Unlawful Activities (Prevention) Act to target students and those who agitate against government policies should be frowned upon. The constitutionality of laws and actions to prosecute for sedition our young, who have no means or power to overthrow the established government, needs to be adjudicated without delay. Such laws are being openly misused. How else can one justify the existence of constitutional courts, which are obliged to protect the freedoms that we cherish?
Constitutional lethargy witnessed in recent years in not deciding matters of great moment with alacrity is another matter of concern. Petitions challenging the November 2016 demonetisation decision have, to date, not been taken up. The challenge to the constitutional validity of electoral bonds, through which political parties are funded, is lying in slumber. The absence of its constitutional scrutiny, in fact, changes equations of power in a democracy threatened by an oligarchic set-up.
The decision of enforcing a sudden lockdown, without adequate notice, in response to the outbreak of the Covid-19 pandemic left millions of hapless migrants stranded. The nation witnessed tragic images still etched in our minds. The court should have immediately ensured that the mandate of the law to provide migrants with basic amenities was adhered to. A court that chooses to accept the statements made by the State at face value, allows the powerful to act arbitrarily, without accountability.
The second wave of the pandemic has shown our State structures to be callous and insensitive. The virus has entered almost every home and the State is clueless and totally unprepared. Hundreds of thousands of people gasped for oxygen for survival. Many succumbed. Floating bodies, heartbreaking stories and the accompanying mayhem have made us numb. The Election Commission has much to answer for. So has the executive. Only the courts can provide oxygen to the system to make the government and institutions and those who man them accountable. That is what courts are meant for.
Kapil Sibal is a former Union law minister, a Member of Parliament, Congress leader and senior advocate
The views expressed are personal