Continuing abdication of its duties to uphold the Constitution and rights enshrined therein, Supreme Court on January 10 delivered a judgment on the petitions filed before against shutdown of internet and other means of communication and its relation to the freedom of press which is part of the fundamental right to expression. Supreme Court had refused to hear these petitions including Habeas Corpus petitions citing the security concerns. Nearly 160 days have elapsed this lockdown but even such a long period has not been enough for the highest Court to say enough is enough.

For over months (since August 4, 2019) there has been complete suppression of civil liberties in Jammu & Kashmir. Life of the people have been completely disrupted and even basic rights totally negated. All these facts have been vividly brought out by a number of reports by different teams who managed to spend some time there and news agencies (obviously not of the country).

Delivering its judgment Supreme Court reiterated principles of liberty but upheld the concerns of security. Its soporific outlining of the liberties in the Constitution, even referred to Constitutions of other countries, but failed to uphold those in India’s own Constitution in practice. Govt. was accorded a carte blanche to annihilate the democratic rights of the people, with only rider that this be done only for seven days at a time without prescribing any limits to how many seven days may there be. The restrictions imposed will remain in place.

It was more like a sermon by the bench delivered more from like a pulpit. Expected to adjudicate, they chose to pontificate. Supreme Court is a Court of Justice and not a mere enunciator of principles of jurisprudence. Constitution is not a mere moral code which is made to appear, but embodiment of the guiding principles including rights of the citizens. It is probably reminiscent of the dilemma of the colonial period Supreme Courts that they could not function under their original mandate lest they endanger the colonial rule. One does not know whether the Highest Court has come to the similar conclusion with regard to their mandate i.e. Constitution of India. For in that case the long sermon can be understood in the light of not what it says but it intends not to say.

The restrictions, according to the Constitution, sought to be imposed on the fundamental freedoms must be “reasonable restrictions”. It has two parts- firstly it is only restriction and not complete annihilation of the right. With this long denial of freedom of expression (including press and internet), assembly and other freedoms, it is more like complete negation rather than any restriction. Secondly, this restriction has to be reasonable i.e. limited in time and scope and based on some tangible criteria. Supreme Court itself has laid down that such restriction cannot be indefinite but failed to prescribe any time frame or any objective criteria by which such time frame can be evolved.

More importantly, the Supreme Court has given the right to review these restrictions to the very executive i.e. authorities which are impugned to be guilty of perpetrating them. They are made a judge in their own cause.

Supreme Court did not pass any order for the restoration of rights which have been negated since August 4 last year. It only asked J&K Govt. to review the need for such prohibitory orders within seven days. This time frame is the only place where SC has been specific albeit only on a procedural issue. Supreme Court has also decided to take up the contention of the Govt. whether prohibitory orders are privileged communications.

Supreme Court judgment once again highlights the warning given at the time of framing of the Constitution of empowering the legislature to restrict the fundamental freedoms. While participating in the discussion in the Constituent Assembly on provision providing for the restriction of the fundamental freedoms under Article 19 (numbered later), Hukum Singh had made a profound observation, “Freedom of assembling, freedom of the press and other freedoms have been made so precarious and entirely left at the mercy of the legislature.” Subsequent history proved that leaving this right to the legislature has placed this right at the mercy of the Executive.

Major newspapers have expressed their dismay at the judgment. The Hindu editorially commented, “The disappointing aspect of the verdict is the Court’s failure to give a ruling on the validity of the Govt. actions.” “It fails to hold the Govt. to account for the manner in which it exercised its powers.” (January 11, 2020)

Indian Express also editorially commented in the similar vein. It said “After such an elaborate statement of principles, it is surprising, not to say disappointing that the Court did not apply them to provide relicef to the two petitioners… by striking down as illegal the clearly indefinite ban on the internet, now fully five months old …” (January 11, 2020)

Editorial of The Hindustan Times also articulated the two concerns on this judgment on what the paper admitted to be the “longest internet blackout” in the world. It says the Court took “over five months to lay out these principles. This reflects a certain degree of abdication of responsibility.” “Sc judgment does not provide any immediate relief. SC should have built on its own principles to provide for immediate restoration of rights.” (January 11, 2020)

It is obvious that this judgment has come as a dampner for those who have been looking towards the apex Court to uphold their democratic rights. The judgment follows the pattern which has become the running thread of kowtowing to the Executive with enormous power to punish and reward.

Those who thought that ghost of ADM Jabalpur case (the infamous case in which the Supreme Court had held that fundamental rights cannot be enforced during the Emergency) had been laid to rest with the Supreme Court holding that wrong. It has got bigger and now the apex Court denies civil liberties and fundamental rights even without Emergency. This is more than apparent from the refusal to hear petitions against denial of democratic rights in including habeas corpus petitions.

Supreme Court has once again failed the people. In fact the apex Court has been bending before the Executive power not held by RSS-BJP who are bent on suppressing people’s rights and ushering in Hindu Rashtra in the service of imperialists, corporate and domestic reactionaries. One should not forget that while Nazis had come to power in Germany through elections they faced no obstacle from the judiciary in that country. What appeared as judicial independence, even sometimes branded as judicial over-reach was rooted in the era of coalition governments leaving little traces in the present period.

Struggle of the people is the only way to secure, protect and exercise these and for that matter any rights of the people. Other fora come into play only when people’s struggles prepare the ground. Struggles of the people in the country are a pointer. People are showing that they do not and will not accept this negation of people’s rights. This course is the only correct course.

January 11, 2020