"Even if it is a Constitution Bench, arguments should not go one for days on end." - Jayna Kothari
"Even if it is a Constitution Bench, arguments should not go one for days on end." - Jayna Kothari
Columns

Fundamental Rights in 2015: In conversation with Jayna Kothari, CLPR

Aditya AK

The Centre for Law and Policy Research (CLPR) recently released Rights in Review 2015, an analysis of the important Fundamental Rights decisions made by the Supreme Court last year.

Much like the first report released last year, this year’s edition centres around the Supreme Court’s verdicts on the core rights – life, liberty, equality and religion.

This year’s edition centres around the Supreme Court’s verdicts on the core rights – life, liberty, equality and religion.
This year’s edition centres around the Supreme Court’s verdicts on the core rights – life, liberty, equality and religion.

Edited by CLPR’s Jayna Kothari and Sudhir Krishnaswamy, the report aims to “identify those fundamental rights cases of the Supreme Court that make new law, settle an uncertain area of law or extend the application of the law to new arenas”.

And although the Supreme Court is considered to be the vanguard of Fundamental Rights, there have been voices suggesting judicial interference. Jayna, however, feels that this intervention is borne out of necessity.

“The courts have been reluctant to step into the domain of the Legislature or the Executive; it is not the role of the court to say how these decisions are carried out. But what often happens is that when the Executive doesn’t do its job, then the common public is left with no other option but to come to court.

And our high courts and Supreme Court have not been that traditional when it comes to maintaining separation of powers. The courts have stepped in when there is a dire need.

“If it weren’t for the Supreme Court, we would have been left without any recourse to addressing sexual harassment at the workplace.”
“If it weren’t for the Supreme Court, we would have been left without any recourse to addressing sexual harassment at the workplace.”

For example, the Visakha judgment. There was no law, and the Court did not wait for a law to be made, so they laid down guidelines. The law came 13 years after that judgment.

If it weren’t for the Supreme Court, we would have been left without any recourse to addressing sexual harassment at the workplace.”

This edition of the Rights in Review covers relevant issues like the Right to Privacy in Justice K.S. Puttaswamy v. Union of India (the Aadhaar case), the reach of the Right to Information Act in JN Mistry v. RBI and the qualifications for voting in Rajbala v. State of Haryana, among others.

The Right to Privacy

It was contended during the course of hearings in the Aadhaar case that the collection of biometric data of the citizens constitutes a violation of the right to privacy. Whether or not this right will be read into Article 21 of the Constitution will be decided by a Constitution Bench this year.

Said Jayna,

“It is going to come up this year in the Aadhar case, and also in the 377 matter before the Constitution Bench. Personally if you ask me, I think the time has come to recognize the right to privacy as a fundamental right under Article 21. There are so many issues related to it today, with the internet and other avenues for our rights to be infringed.”

She also agrees that there is a growing trend of treating RTI applications with opaqueness, and this is something even the Supreme Court concurred with in JN Mistry.

“Government agencies have become really good at evading the RTI Act. Everything comes under a Section 8 exception, or they say that they don’t have the information.

I think it’s good that the court has shattered the defence that the RBI was in fiduciary capacity to the banks.”

In perhaps the most controversial decision of last year, a bench headed by Justice Chelameswar upheld the Haryana Panchayati Raj (Amendment) Act, 2015, which prescribed new minimum eligibility qualifications to contest elections.

The report criticises the Bench’s decision to reject arbitrariness as a ground for challenging legislation as violative of Article 14.

“The Court in Rajbala said that arbitrariness is not a ground to challenge legislation, and to say that, it relied on a 2-judge decision. There have been so many other instances of larger benches deciding otherwise. In that sense, what we have said in Rights in Review is that the decision is per incuriam.”

“…the Court has not made significant progress in 2015 towards articulating a model of constitutional judicial review for fundamental rights…”
“…the Court has not made significant progress in 2015 towards articulating a model of constitutional judicial review for fundamental rights…”

Apart from analysing the cases, the report also makes an interesting observation as regards the manner in which the Supreme Court functions. The report states,

“…the Court has not made significant progress in 2015 towards articulating a model of constitutional judicial review for fundamental rights…”

So how can such a model be created?

“There has to be some kind of predictability as to what standards the Court is going to use. And we have seen that in some cases, the Court has gone against other decisions, like in Rajbala. Hopefully this will highlight some of the problems the Supreme Court.

Another issue is that we have so many benches of the Supreme Court; one bench may or may not take the decision of another. For example, in the 377 case, this bench has been very open and felt that it is an important matter that should go to a 5-judge bench. And on the other hand, you have the 2-judge bench in Kaushal which allowed the appeal.

It is for the Court to develop its principles of judicial review, taking into account precedents and binding decisions, so that there is some coherence.”

Another aspect of the report is the tenor in which it is written; CLPR has made a conscious effort to avoid the “provocative and rhetorical style” of reporting cases.

And Jayna feels that the media can perhaps take a leaf out of their book.

“We feel that reporting must be more substantive, even though there may be some provocative parts in a decision.”
“We feel that reporting must be more substantive, even though there may be some provocative parts in a decision.”

“If you look at the reportage of the Rajbala case, only that one line has been taken out that ‘toilets are not there because of the will of the people’.

It was just a line in the judgment and not the whole decision. We feel that reporting must be more substantive, even though there may be some provocative parts in a decision.

Even if you want to critique it, you should analyse it and do it substantively. That way it will benefit the general public, as well as lawyers. A lot of writers and commentators just throw in one or two provocative things and that’s it.”

Last year’s report lamented the scarcity of Constitutional cases being taken up for hearing by the Supreme Court. But now it seems that Chief Justice TS Thakur has taken an initiative to remedy just that, with his plan of setting up Constitution benches twice a week.

Jayna feels that it is a welcome initiative, as long as certain precautions are taken.

“I think it’s a good initiative, but there should be some timeline. Even if it is a Constitution Bench, arguments should not go one for days on end. In these matters, you have one counsel arguing for two entire days.

Even if it is a matter of the highest Constitutional importance, you can certainly have a time-bound completion of hearing.”

Read Rights in Review 2015 here:

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