India’s High Courts stepping up is a silver lining in judicial gloom

[dropcap]O[/dropcap]N 19th February 2020, the Supreme Court Collegium, which decides the appointment of judges to the High Courts and the Supreme Court, recommended the transfer of Justice S. Muralidhar, a noted and upright judge of the Delhi High Court to the Punjab & Haryana High Court.

While a big gain to the Punjab & Haryana High Court, it was seen as a considerable loss to the Delhi High Court, and many viewed it as a 'punitive' transfer since Justice Muralidhar had given many significant decisions in recent times, including quashing the transit remand of Gautam Navlakha in the Bhima Koregaon cases in 2018. At the same time, it is important to note that how a fair judge adds value to every High Court, especially the ones in the smaller Courts, not that P&H High Court is a small one.

One may recall the case of Justice Akil Kureshi, one of the senior-most judges of Bombay High Court who was first recommended to be the Chief Justice of Madhya Pradesh High Court, but then was made the Chief Justice of Tripura High Court in November 2019, owing to the government's objections to his transfer to Madhya Pradesh. The transfer was widely condemned by the lawyers and jurists and was seen as a vindictive act by the Modi Government.

In January 2020, Chief Justice Kureshi delivered a landmark judgment upholding the freedom of government servant to express their opinions/beliefs, subject to the Civil Service Conduct Rules, thereby showing that a fair judge would apply the law in a correct fashion anywhere, irrespective of the bench strength of the High Court.

Right to protest

In the last few months, the role of the Supreme Court in protecting the constitutional rights of people has come under intense scrutiny, with people being dismayed at the apex court's inaction in most matters of personal liberty, including in Kashmir, and in the anti-CAA/NRC protests.

With the judiciary taking a backseat and letting the Executive run amok, the crisis of the constitutionalism in India has never been worse. In this regard, thankfully some High Courts have given decisions upholding the rule of law, and the fundamental freedoms of the Indian citizens, especially of those who are protesting against the new citizenship law.

High Courts stand up

In January 2020, the Allahabad High Court directed the National Human Rights Commission ('NHRC') to conduct a thorough inquiry into allegations of gross brutality and violence by the UP police on young students of the Aligarh Muslim University on 15th December 2019. While noting the Petitioner's contentions, the Court observed that "the photographs annexed with the petition reflect certain serious happenings which are termed by the petitioner as brutal, violation of human rights that also amounts to commission of a cognizable crime. The narration of facts certainly demands a probe." The High Court then asked the NHRC to complete the inquiry within one month.

On 13th February 2020, the Bombay and Karnataka High Courts in two separate judgments elaborated on the contours of the fundamental right to protest, especially in the context of anti-CAA protests.

In one case, the Bombay High Court was considering the validity of police action to not allow peaceful protests in Beed, Maharashtra as a preventive action under Section 149, CrPC, and categorically stated that

"we must keep in mind that we are a democratic republic country and our constitution has given us rule of law and not rule of majority. When such act is made, some people may be of a particular religion like Muslims may feel that it is against their interest and such act needs to be opposed. It is a matter of their perception and belief and the Court cannot go into the merits of that perception or belief. The Courts are bound to see whether these persons have right to agitate, oppose the law. If the Court finds that it is part of their fundamental right, it is not open to the Court to ascertain whether the exercise of such right will create law and order problem. That is the problem of a political government. In such cases, it is the duty of the Government to approach such persons, have talk with them and try to convince them."

The High Court further encouraged the bureaucrats to be more sensitive to the issues of people's rights, and noted that "officers from bureaucracy who are vested with powers of aforesaid nature need to be sensitized by giving them proper training on human rights which are incorporated as fundamental rights in the constitution."[Iftekhar Sheikh v. State of Maharashtra, Criminal Writ Petition No. 223 of 2020, date of order: 13.02.2020]

This is precisely what the role of a Constitutional Court is, as envisaged in the Constitution, i.e., to keep the fundamental rights of citizens at the centre of its adjudication, and to facilitate its exercise, and not ask people to stop 'protesting', as the Supreme Court did in the Jamia violence cases in December 2019.

In the other case, the Karnataka High Court was deliberating on the validity of prohibitory orders passed by the Bangalore police on 18.12.2019 under Section 144, CrPC in Bangalore to ban all public gatherings in the city in view of the nationwide call of protests against the Citizenship Amendment Act, 2019, and held that such orders were illegal, and did not stand legal scrutiny.

While finding that there was non-application of mind on the part of the District administration, the High Court observed that "we are not concerned with the subject of the protests, our concern is about decision-making process which undoubtedly curtails the fundamental rights. It is indeed a preventive measure. The preventive measure has the effect of curtailing fundamental rights of citizens.

Prima facie, the formation of opinion is not reflected in the order. Therefore these petitions are taken up for hearing at a preliminary stage. The issue, whether permission granted, can be revoked by passing an order under section 144 and that also without giving pre-post decision hearing will have to be gone into."

All these three cases clearly show that if the judiciary merely performs its role effectively, and applies the law, the democratic rights of the people are protected and strengthened. The fundamental right to peaceful protests is a bulwark against authoritarian regimes and is a cornerstone of a democratic polity. The protests against CAA/NRC/NPR have happened all over the country mostly without the Court's protection, and do not need any judicial approval, but through these few and far between decisions, the judiciary is still somehow retaining its relevance in the hearts and minds of the people of India. It would really be a sad development if people only remember the Constitution, but forgets about the guardian of the Constitution. This is, in effect, the fight to save the judiciary, and not a fight to save the protests. (IPA Service)

The writer is a Delhi based lawyer.