It was not an easy year. The spotlight was on the judiciary which ignored serious issues and cases. Students, migrants and protestors were crying for justice. Issues that could have waited were heard. Samriddhi Chatterjee, Sayan Chandra and Aman Garg point out that what we need is a judiciary that treats all without any favour or prejudice.

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It was the best of times; it was the worst of times. It was an unprecedented effort to save the world’s largest democracy from the clutches of what had become the Leviathan of a selected few.

It was about a year ago that a massive furore led people from all walks of life to take their dissatisfaction to the streets and express it out in the open.

This marked the beginning of political and judicial mayhem that culminated in the gruesome Delhi riots and the subsequent arrest of student leaders who were slapped with the draconian UAPA for having participated in the nationwide protests.

Since then, the country has witnessed a number of developments amid the worldwide pandemic. Arrest and detention have become commonplace with utter disregard to the Constitution and the human rights of all citizens.

It was about a year ago that a massive furore led people from all walks of life to take their dissatisfaction to the streets and express it out in the open. 

The demagogue, sitting at the throne, has ensured that no voices are raised against his cattiness. During such a difficult time, the door of the highest Court of land has also decided to turn a blind eye to the state of affairs prevailing in the country.

What is being hinted at is the way the listing of cases is being carried out with no thought being given to the urgent and pressing needs at hand.

There is a reason behind why the Court’s conduct has come under scrutiny in recent times. This becomes difficult for the common citizens to talk about as they fear attracting contempt of court.

While many were looking up to the Supreme Court for a swift and decisive pronouncement on the matter relating to citizenship, the institution led by CJI Bobde chose to give priority to the questions of essential religious practices raised in the Sabarimala review and even after a year, more than 140 petitions have still been waiting to be heard by the Court.

In spite of global attention that the CAA protests garnered, the petition is still pending before the Supreme Court with no stay order either.

While many were looking up to the Supreme Court for a swift and decisive pronouncement on the matter relating to citizenship, the institution led by CJI Bobde chose to give priority to the questions of essential religious practices raised in the Sabarimala review and even after a year, more than 140 petitions have still been waiting to be heard by the Court.

On December 15, 2019, when the Para Military Force and the State Police violently, for no just and valid reasons, broke out in the campus of Aligarh Muslim University and resorted to a lathi charge coupled with firing of rubber bullets, pellets and tear gas on the students, the Chief Justice of India refused to take cognisance of the same and remarked that the Court cannot be “bullied”.

Right from the electoral bonds case to the abrogation of Article 370, everything that has a ‘Political significance’ for the ruling party has been conveniently delayed by the Supreme Court.

Senior Advocate Indira Jaising was told that the Supreme Court would hear the matter the following day but only the condition that the violence ceases.

Ironically, on the next day, December 17, 2019, the Supreme Court asked the parties to appear before the High Court, as it was “not feasible” for the Supreme Court to monitor the probe, as the incidents happened across the nation.

The Supreme Court acted as a silent and blind spectator at a time when activists and young students of the country were hit with lathis, rubber bullets, water cannons, etc. Around 31 people lost their lives in the violence, thousands were injured, but not a single direction was issued to ensure that medical assistance is provided to the victims.

An opportunity to correct these wrongs came to the doors of the apex court when a PIL was filed alleging adoption of a “pick and choose” policy by its Registry and of consistently giving priority to influential advocates in the listings. 

During such circumstances, where time was of the essence, human life and dignity were at stake, the Apex Court decided to relegate the parties to approach the ‘appropriate forum’ as it would not have been ‘feasible’ for the Court to hear all of them.

This is not the only matter that awaits a hearing. There are numerous such extremely pressing issues and cases of public importance pending before the Court.

Right from the electoral bonds case to the abrogation of Article 370, everything that has a ‘Political significance’ for the ruling party has been conveniently delayed by the Supreme Court.

During the pandemic when the court was functioning in a restricted manner and only urgent matters were being heard, the court chose to hear the contempt proceedings against Advocate Prashant Bhushan where no such urgency was present.

Similarly, there were irregularities in the urgent listing of matters, as Arnab Goswami’s interim bail application got listed within two days whereas numerous bail applications are not being heard and disposed of in a timely manner. The problem was even acknowledged by a bench of Justice DY Chandrachud and Justice Indira Banerjee in Arnab Goswami’s bail order.

The most important and urgent matters are getting delayed for hearing and are not being prioritised as much as they should have.  

An opportunity to correct these wrongs came to the doors of the apex court when a PIL was filed alleging adoption of a “pick and choose” policy by its Registry and of consistently giving priority to influential advocates in the listings.

Pointing that there are no procedures and guidelines followed by the Registry for the urgent listing of the cases, it sought a direction to its “Secretary-General & Registrar/officers to not give priority to cases filed by such influential lawyers.” However, this was dismissed by the Court, with cost, and a direction to not demoralise the Registry by such remarks. Not long, another bench of the same court itself sought an explanation from the Registry for not listing an anticipatory bail application within the four-week limit set by the Court in September 2019 as the same became infructuous on account of the arrest of the applicant during its pendency.

The problem has once again come to light with an RTI being filed by activist Saket Gokhale with the Supreme Court of India, asking about the number of pending interim bail applications before it and the average time that is usually taken for a listing of such applications. Gokhale contends that there are numerous habeas corpus petitions pending before the court but some people are just jumping the queue to get their matters heard on a priority basis. Well, that does seem to be an underlying truth.

Instead of deciding on the constitutionality of the law which was also listed before the Court, the Court chose to decide the conduct of the protest. For the Court, the law being protested against was less important than the protest itself. 

The most important and urgent matters are getting delayed for hearing and are not being prioritised as much as they should have.

This brings into light another issue that desperately needs the attention of the judiciary. The most urgent one at present is a petition on the recently passed farm laws which is being vehemently protested against by the farming communities in the capital. In this bone-chilling winter, while the Court is taking its time, the farmers are out on the streets protesting against the laws.

Instead of deciding on the constitutionality of the law which was also listed before the Court, the Court chose to decide the conduct of the protest. For the Court, the law being protested against was less important than the protest itself.

The Court did the same with the Shaheen Bagh protesters and the matter of CAA. While the matter against which the protest was being staged still remains to be heard, the legality of the peaceful protest was considered to be of more importance.

It seems we are moving away from the equality doctrine and towards the adoption of ‘Social Darwinism’ as a way of life in India, where, through the process of natural selection, the ‘mighty and rich’ would inevitably eliminate the ‘weak and poor’. 

These two cases have set a very unsettling precedent which is likely to be used against future demonstrations to shut them down even before hearing the matter being protested against. Amidst all this, instances such as that involving Arnab Goswami have created doubts in the minds of the citizens about whether the spirit of “equality of law” has been shoved deep down, or is it still alive somewhere in the dusty corners, waiting to be noticed by the Courts that they feel have forgotten it.

These kinds of preferential treatments offered to a few and the entailing exclusion meant for the rest have become an obvious norm of our society.

It seems we are moving away from the equality doctrine and towards the adoption of ‘Social Darwinism’ as a way of life in India, where, through the process of natural selection, the ‘mighty and rich’ would inevitably eliminate the ‘weak and poor’.

What is needed at this point is attention to issues of public importance that have the potential of causing damage to our democracy and democratic institutions. What is needed is assurance and guarantee from the authorities to help the citizens reinstate their faith in the judiciary. What is needed are guidelines and standards for a listing of cases in a fair manner. And lastly, what is needed is an independent judiciary that treats all citizens equally without any favour or prejudice and ensures their greatest welfare.

[Samriddhi Chatterjee, Sayan Chandra and Aman Garg are students at the Gujarat  National Law University (GNLU). The views are personal.]

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