Becoming a court of all citizens

In 1944, at the height of the World War II, the best judge not appointed to the United States Supreme Court, Justice Learned Hand, was welcoming new citizens, who were taking the oath of citizenship. In a classic oration, which became famous as the Spirit of Liberty address, he told them: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.”

Earlier this year, Sadhana Ramachandran and I were appointed by the Supreme Court (SC) to be interlocutors for the protesters at Shaheen Bagh. The first day of the interlocution was very important. We would not have a second chance to make a good first impression. While talking to the protesters, we went prepared to talk to formidable grandmothers who had become the face of the movement. However, it was two young burkha-clad grand-daughters who made a significant impact.

One of them said: “We are sitting here for our rights. Instead of acknowledging and clearing our doubts, we were defamed, maligned and abuses were hurled at us... The government should be ashamed.” She broke down and asked us: “It is being argued that people are facing inconvenience? Are we not the people of India? Is our inconvenience lesser than those who are unable to use the road? We are out on the road because the government is not listening to us. ...We are thankful to the court that they listened to us.”

Referencing Justice Hand, I replied, “Liberty lies in the heart of men and women. Till we have youth like you who are out on the streets with the sacred book of Constitution in their hand, we will remain independent. I really appreciate your intellect and articulation”.

My answer did much to break the ice with the crowd, who had made the Indian Constitution go viral on the streets. The national flag and the Constitution’s Preamble had become symbols of resistance against the Citizenship (Amendment) Act. Demonstrations, throughout India, had begun with recitations of the Preamble and then segued into flag marches with the Tricolour.

While the virality of the Constitution and the fight for its values have currently been displaced from the streets by the Covid-19 pandemic, I suspect that the spirit of liberty has not been effaced from the hearts of Indian men and women. The Constitution is now a public scripture whose working interpretation is sanctified by public acclaim. It, is therefore, no surprise to me that SC’s reported disinclination to entertain Article 32 petitions has raised a furore.

To be fair to the Chief Justice who articulated the proposition, there is nothing new that he has said. The court has traditionally not entertained Article 32 petitions, when effective alternative remedies are available. The court has preferred to direct petitioners to high courts (HCs), which have a wider jurisdiction under Article 226 of the Constitution. If HCs make an error, SC can always correct it, in appeal, but the converse is not possible. An error by SC, in its writ jurisdiction, is incapable of correction by any other court. Lastly, the exercise in the first instance by SC of its writ jurisdiction, in a case that should have gone to a HC, renders HCs otiose, in the enforcement of constitutional order. But even a right position, articulated at the wrong time, can be greatly misunderstood.

In 1973, Justice SN Dwivedi observed in the Keshavananda Bharati case: “The Constitution is not intended to be the arena of legal quibbling for men with long purses. It is made for the common people. It should generally be so construed that they can understand and appreciate it.”

Currently, SC’s restricted construing of Article 32 seems to run contrary to the temper of the times. In the past year, on the streets of India, its people have negated the grim foreboding expressed by Somnath Lahiri in the Constituent Assembly who felt that, “many of these fundamental rights have been framed from the point of view of a police constable”. According to him, every guaranteed right was negated by a proviso.

A pandemic of rights having broken out, the constitutional courts cannot by proviso, take away an expectation of basic fairness. They cannot negate the promise of liberty and equality in the Constitution’s Preamble. Today the citizen is bewildered that while she can move the court, the court can remain still in her case, but move extremely speedily in respect of some others. Her confusion is worse when she is asked to remain in prison and secure bail, through a lengthy process of submission, while others triumphantly check out from prison, as if returning from a short, enforced vacation.

If SC’s role as a protector of personal liberty is to mean anything at all, it must be equal in application when it comes to the aid of all citizens. It cannot look away from endless pre-trial detentions without any possibility of bail. It must be a court of all people and not only a court for people who matter.