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Mainstream, VOL LIX No 7, New Delhi, January 30, 2021

Concerned Citizens Open Letter to the Chief Justice Regarding Delay in Listing/Hearing Important Matters Affecting Lives of Millions of People

Friday 29 January 2021

To

The Honourable Chief Justice of India,
Supreme Court of India
New Delhi,

Sub: Citizens open letter to the Chief Justice regarding delay in listing/hearing important and urgent matters affecting lives of millions of people — denial of justice through delay.

Your Honour,

At the outset, let us point out why common citizens do not talk about the Court’s conduct. Because they fear attracting contempt of court. However, some of us believe that we will be failing in our constitutional duty, if we do not stand up and give expression to what has been troubling millions of people in the country over the last two years, particularly the response of Indian judiciary to the abrogation of Article 370, the annihilation of the “state” of Jammu and Kashmir and the enactment of Citizenship Amendment Act (CAA) in December 2019.

Abrogation of Article 370

As we may recall, the abrogation of Article 370 was followed by en masse detentions of opposition politicians, activists, and lawyers in the region. Further, a strict lockdown and communications blackout were imposed, keeping the citizens of Jammu and Kashmir in the dark over developments taking place in Delhi. The first challenge to the Presidential order was filed on August 9 before the Supreme Court. Following which, there were many petitioners from all over the country before the Supreme Court, including several MPs from the National Conference, Kashmiri citizens, including former bureaucrats, and various organizations. A five-judge Constitution Bench was set up on September 29, 2019 to hear the challenges to the abrogation of Article 370 and the State’s bifurcation into two Union Territories. This Bench is headed by Justices NV Ramana and comprises of Justices Sanjay Kishan Kaul, R Subhash Reddy, BR Gavai, and Surya Kant. Since then and now, the Central government has taken many steps to further remove all features of Article 370 and to concretise the bifurcation, despite calls for the reinstatement of Jammu & Kashmir’s statehood getting louder. Though it was said that, “The Supreme Court can always turn the clock back”, (Justice Kaul, October 1, 2019) the petitions were relegated to cold storage. 

In the meanwhile, the central government has been left free to carry out its programme of dismantling all the protective measures for the people of Jammu and Kashmir, and change domicile law and property ownership law and reservations for the state subjects in state government jobs. Such major changes have been made that it will be virtually impossible to reverse these - putting the “clock back” will remain, like many other promises of Supreme Court, a mere chimera.

Let us also look at the outcome of Kashmir Times Editor Anuradha Bhasin’s petition questioning the restrictions that were imposed not only on the media, but also on movement and general communication in the region. After nearly four months, the Supreme Court delivered its judgment, recognising the Constitutional protection granted to freedom of expression and profession through the internet as a medium. However, precious little happened on the ground. The judgment empowered the same review committee set up by the same government which was imposing the curbs in the first place. It was like asking the executioner to protect the life of the person he wants to slay.

The Supreme Court it seems is unaware of the fact that a large part of the Jammu & Kashmir region is still facing internet restrictions, causing serious medical crisis at a time when the country is reeling under a pandemic.

Challenges to CAA

Turning to the CAA, in spite of the nationwide peaceful democratic protest and the global attention that protests against the Law garnered, the Supreme Court seemed to turn a blind to nearly 140 petitions challenging the legality of the CAA. These petitions are still pending before the Supreme Court.

Thousands of people were looking up to the Supreme Court for a swift and decisive pronouncement on the matter relating to citizenship. However, Mr Chief Justice, it seems you did not think the issue of CAA was an urgent matter. You chose to give priority to questions such as those of religious practices raised in the Sabarimala review. Later you ordered the removal of the peaceful camp of protesters. The most interesting part of this was that police came to you seeking the Court’s approval for the removal of the protesters from Shaheen Bagh, though the police had the power to so. In that case, had the police removed the protesters at Shaheen Bagh, the protesters could have approached the Court for protection of their right to dissent and peaceful agitation. By giving the police the uncalled-for sanction, you ensured that aggrieved citizens had no recourse to justice. The real fact is that it was not the protesting crowd, who had blocked the entire road. They had left half the road open. Yes, movement of traffic was slow, but it was never held up. Actually, it was Delhi police which had blocked the road from all sides.

Habeas Corpus

Let us now look into how the Court has responded to the critical issue of habeas corpus. Habeas corpus is an important instrument that acts as a check on government powers to restrict liberty of citizens. The fundamental purpose of the writ is to ensure swift review of illegal detentions. The key aspect of the habeas corpus writ is the urgency that is attached to it. This is because along with right to life, liberty is considered the most precious of all fundamental rights.

In August 2019, in two habeas corpus petitions related to Jammu and Kashmir your orders defeated the very spirit of the writ instrument, which has been described as “first security of civil liberty”.

On August 19, Communist Party of India (Marxist) general secretary Sitaram Yechury moved such a petition seeking the production before the Supreme Court of former party MLA from Kashmir, Mohammad Yousuf Tarigami, informing you that when he had tried to visit the party leader, he was stopped by the authorities from entering Srinagar. Yechury had requested the court to direct the authorities to produce the former MLA before it and have the ailing politician admitted to the All India Institute of Medical Science in New Delhi.

Similarly, Mohammad Aleem Sayed, a law student from Kashmir, had moved the court against what he feared was the illegal detention of his parents in Anantnag in Kashmir. His petition too wanted a direction to the authorities to produce the family before the Supreme Court.

However, the bench headed by Chief Justice Ranjan Gogoi on Wednesday did not consider the question of whether the detentions were legal. Instead, it allowed both Yechury and Syed to visit Kashmir to meet their friends and family. The government was asked to facilitate Syed’s travel. Both Syed and Yechury have been asked to file reports to the court after their visits.

In Yechury’s case, the Court dismissed opposition from the Centre, which cited the sensitive situation in the Valley and allowed the communist leader to travel to Kashmir. While this was a positive intervention to which Yechury’s lawyers agreed, it is also a fact that the court has not, for the moment, moved to determine the validity of Tarigami’s detention. In fact, the order did not even issue notices to the Centre about it. Technically, the petition is still pending for admission.

Similarly, in the case of Mohammad Aleem Sayed, while facilitating his journey to the Valley, the court did not issue notices to the Centre. Allowing the petitioners to meet their friends and families in Kashmir does not in any way remedy the alleged violation of right to liberty. If anything, the delay in ordering notices to the government seeking explanation on the detentions indirectly allows the authorities to sustain the illegal detention, even if it is only for a few days.

Let us look at the case of Siddique Kappan, who has been under detention since October 5. The matter has been going on going since November 20. The Kerala Union of Working Journalists (KUWJ) had filed a habeas corpus petition before the Supreme Court challenging the detention of Kappan, who was arrested on his way to Hathras by the UP police days in relation to the death of a Dalit teenager from Hathras which had whipped up a storm across the country. He was arrested along with three other persons and has been charged with sedition and several sections of the Unlawful Activities (Prevention) Act (UAPA). Senior Advocate, Kapil Sibal, appearing on behalf of the petitioner KUWJ, told the court that Kappan was not being allowed to meet his lawyer.

Instead of addressing the issue raised by Kapil Sibal, particularly as under Article 32 of the Constitution, you have the primary jurisdiction in matters of habeas corpus, the Chief Justice of India S.A. Bobde asked Sibal why he had not approached the Allahabad high court instead of moving the Supreme Court. During that hearing, the apex court has also expressed its disinclination to admit the habeas corpus petition and instead asked the petitioners to move the high court.

But not all are unlucky as Siddique Kappan. Among those who were allowed to approach the Supreme Court directly under Article 32 petition in the apex court was the Republic TV owner-editor Arnab Goswami, who sought quashing of various charges filed against him by Mumbai police. These included a 2018 abetment to suicide case and a batch of multiple FIRs in different states stemming from a controversial programme on the Palghar mob lynching as well as one on Republic TV’s coverage of the crowds that had gathered outside Bandra railway station in Mumbai during the lockdown in which the channel had insinuated that the mosque had played a role in the gathering.

Strange is not, that it was only in the case of Arnab Goswami that the Court found it appropriate to say, “states must realise there’s an apex court to protect the liberty of citizens”. Obviously Siddique Kappan did not merit such indulgence. The question is, should the SC show to the country that there are two sets of people, one more privileged than the other? If the erratic habeas corpus orders are anything to go by, the Supreme Court has uncritically accepted the government’s disproportionate claims about national security and given it precedence over the ideals of civil liberties.

The Indian Constitution created the Supreme Court at the apex of the Indian judiciary. It is the highest authority to uphold the Constitution of India, to protect the rights and liberties of the citizens, and to uphold the values of rule of law. Hence, it is known as the Guardian of our Constitution. When we look at the history of Supreme Court’s interventions in the past on issues of liberty we do feel proud. Let me recall a few instances. 

In the case of State of Maharashtra vs. Bhaurao Punjabrao Gawande, the Supreme Court had made the following comments on the nature of habeas corpus:

“The celebrated writ of habeas corpus has been described as ‘a great constitutional privilege’ or ‘the first security of civil liberty’. The writ provides a prompt and effective remedy against illegal detention. By this writ, the Court directs the person or authority who has detained another person to bring the body of the prisoner before the Court so as to enable the Court to decide the validity, jurisdiction or justification for such detention. The principal aim of the writ is to ensure swift judicial review of alleged unlawful detention on liberty or freedom of the prisoner or detainee.”

Earlier, in Romesh Thapar vs. The state of Madras, (May 1950) Supreme Court had stated that, “Criticism of government exciting disaffection or bad feelings towards it, is not to be regarded as a justifying ground for restricting the freedom of expression, or of the press.”

In the writ petition No.5129 of 2012 N. Ram, Editor-in-Chief, Printer & Publisher “The Hindu vs. the Union of India, Justice Abdul Quddhose said “A very important aspect of democracy is that citizens should have no fear of the government. They should not be scared of expressing views which may not be liked by those in power.” He went on to say, “Criticism of policies of the government is not sedition unless there is a call for public disorder or incitement to violence.”

The actions alluded to above, we are sorry to say, raise serious questions about commitment to constitutional obligations and the undermining of the independence and impartiality of the apex court. When the judiciary which is supposed to oversee all activities to be conducted within the framework of the constitution, itself violates its constitutional duties, then there is no remedy in law and the court becomes the first to be held in contempt of court as a constitutional body. In this situation, we feel it is appropriate to remember what CJI, Justice J. Varma had said, “The powers which are given to us are not provisions meant for personal aggrandisement. They are meant to sub serve the constitutional purpose and they are meant for upholding the majesty of the law.” (R.C. Ghiya Memorial Lecture, The Constitutional Obligation of the Judiciary, Delivered by Hon’ble Shri J.S. Verma, Chief Justice of India in 1997)

After all that has been said above, one wonders how the Supreme Court still believed that the people of India would find its “independent and impartial” intervention in the farmers agitation as just and legitimate?

In the end we submit that the Supreme Court needs to show that it is neutral and works under public transparency and that cases concerning the fundamental rights of a person are dealt without any biases.

Yours sincerely

Tapan Kumar Bose
Sumanta Bannerjee
A. K. (Dunu) Roy
Imrana Qadeer
Rita Manchanda

Endorsed by

A.K.Samanta
Admiral (Retd) Laxminarayan Ramdas
Advocate Flavia Agnes
Air Vice-Marshal (retd) Kapil Kak
Alok Perti
Amitabh Pande
Anand Karandikar
Anna Dani
Anuradha Bhasin Jamwal
Ashok Choudhary
Ashok Sharma
Aswathi Nair
B.B.Mahajan
Badri Raina
Bharat Bhushan
Capt. Ashok Khanna
Capt. Ashok Khanna
Dr Asha Achy Joseph
Dr Atul Gurtu
Dr Maitrayee Mukhopadhyay
Dr Sanjay Kumar
Evita Das
Gopalan Balagopal
Gurjit Singh Cheema
Harry Gujral
Harsh Kapoor
Harsh Mandar
Hindal Tyabji
Joe Athialy
K.P Sasi
Kalyani Menon Sen
Leo Saldhana
Madhu Bhaduri
Maitrayee Mukhopadhyay
Meena Gupta
Meera Sanghamitra
Mritiunjoy Mohanty
Ms Kabita Lindenmeyer
Nagalsamy IAAS (retd.)
Nalini Misra Tyabji
Nandini Sundar
Navrekha Sharma
Nityanand Jayaraman
P Joy Oommen
Pamela Phillipose
Prafulla Samantara
Pranab Mukhopadhayay
Priya Dharshini
Prof Achin Vinaik
Prof Anand Chakravarti
Prof Pradip Kumar Bose
Prof Uma Chakravarti
Prof Dinesh Mohan
Rajashri Dasgupta
Ranabir Saaddar
Ritu Dewan
Roshmi Goswami
Sadanand Menon
Dimple Oberoi Vahali
Sandeep Pandey
Shekhar Sonalkar
Sadiq Wahid
Souparna Lahiri
Sumit Chakravartty
Sushil Khanna
Tani Alex
Vahida Nainar
Vijaya Chauhan
Vijayan MJ
Wajahat Habibullah
Xavier Dias

Address: Tapan Kumar Bose
H-31/A Jangpura Extension (Ground Floor),
New Delhi 110014

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