"All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary", wrote former US President Andrew Jackson.
Despite the cardinal role of our Supreme Court as the ultimate guardian of our fundamental rights having been woven into our polity, the debate over accountability by judicial scrutiny seems to resurrect itself ever so often in some form or the other. A familiar refrain employed by the powers that be, especially in times when individual rights seem like inexpedient barriers to executive goals, is to question the very authority of courts to judge the wisdom of policy-making. It is argued that accountability to the “unelected” so to say, is undemocratic. What is conveniently disregarded is that judicial deference to the “wisdom of the elected” in matters affecting human rights, is neither our constitutional philosophy nor the jurisprudential basis of a democracy.
As the Supreme Court itself once held,
“If the courts in this country face up to such an important and none too easy task, it is not out of any desire to tilt at legislative [or executive] authority in a crusader’s spirit, but in discharge of a duty plainly and unambiguously laid upon them by the Constitution.”
Korematsu, the infamous example of the US Supreme Court submitting to popular pressure during times of crisis and upholding rank racial profiling after Pearl Harbour, has a noteworthy sequel. Long after his conviction in 1942, Korematsu petitioned the United States District Court at California in 1984 for a writ of coram nobis to vacate his conviction on the grounds of governmental misconduct. Judge Patel, while granting Korematsu relief, observed:
“Korematsu…stands as a constant caution that in times of war or declared military necessity, our institutions must be vigilant in protecting constitutional guarantees. It stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability….”
A solemn reminder indeed of the perils of undue deference by courts to executive authority, even amidst the clash of arms. It took an equally long time for our own Supreme Court to finally bury ADM Jabalpur and accept that certain inviolable rights inhere in every individual by virtue of being human alone. The historic judgment quotes Dworkin, who says “Individual rights are political trumps held by individuals...", and therefore, "a court that undertakes the burden of applying these [rights] fully as law, must be an activist court, in the sense that it must be prepared to frame and answer questions of political morality…”
Thus emerges the imperative role, fundamental to democracy itself, of a Constitutional Court to weigh the political morality of every policy that affects human rights.
Silence of codified law necessarily impacts human rights
Amidst the unpreparedness of the medical and the administrative world, the silence of codified guidelines and consequent governance by ad-hoc directions, however well intended, has seen myriad human rights violations. Whether it was the abject indignity of the migrant labour, or the apathetic ignorance of the homeless, or even the systemic neglect of policy to deal with non-COVID patients, governance by “directions” undeniably silenced our rights in this hour of crisis.
If ever there was an occasion for our Supreme Court, as the constitutionally ordained sentinel of human rights, to fill in this silence of the law, it was the day when millions of migrants began trudging voicelessly and many more slept in hunger. If ever there has been a compelling need for the courts to employ the ever evolving power of judicial review, it is now when the silence of codified law challenges the individual’s freedoms and right to dignity in countless ways.
For if, “It is the duty of the State not only to protect human dignity but to facilitate it by taking positive steps in that direction”, it then becomes the Constitutional obligation of courts to hold the executive to account for its failure to secure that right.
Proportionality as a Constitutional imperative to judge policy: The South African example
A recent judgment of the High Court of Pretoria, South Africa, premised on the fundamental principle that the executive must act within constitutional bounds even during an acute crisis, struck down certain South African Lockdown Regulations by applying the test of proportionality.
The Court’s observations make for interesting reading:
“….once the goal was to “flatten the curve" by way of retarding or limiting the spread of the virus (all very commendable and necessary objectives), little or in fact no regard was given to…the constitutional rights of people and whether the extent of the limitation of their rights was justifiable or not."
The starting point was not "how can we as government limit Constitutional rights in the least possible fashion whilst still protecting the inhabitants of South Africa?", but rather, “we will seek to achieve our goal by whatever means, irrespective of the cost and we will determine, albeit incrementally, which Constitutional rights you as the people of South Africa, may exercise".
That the end justifies the means, seems like an all too familiar refrain of governments across the globe, indeed across time itself, when faced with a crisis. This judgment may or may not find approval in appeal, but it stands out in its sheer boldness to hold the executive to account even amidst the severest of crises.
In Puttaswamy, the 9-Judge Bench emphatically laid down,
“An invasion of life or personal liberty must meet the threefold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.”
Regrettably, most of the ad-hoc ‘directives’ issued by the Centre or even the states during the last three months, from a mere four-hour notice for a swift lockdown, to the “stay where you are” command to millions of migrants stranded on highways, or even the flip-flop orders over home isolation and mandatory testing by states, would hardly have passed muster under the first and the third prerequisites of the Puttaswamy test.
Role of the Bar
While our Supreme Court has fittingly been described as the “sentinel on the qui vive”, the collective wisdom of the Bar is undoubtedly the sentinel’s keeper. It would be naïve to proclaim that the word of an Apex Court is infallible, merely because that word may be final. In the famed words of Justice Cardozo,
“The great tides and currents which engulf the rest of mankind, do not turn aside in their course and pass the judges idly by.”
To express honest concerns about a course of action adopted by the Court then becomes a sacred duty of the Bar, which needless to say, is not represented by individuals or any association.
As Justice Krishna Iyer observed in his inimitable style,
“The Bar has a share in being the sentinel on the qui vive when the legal dykes of right and justice are breached by authoritarianism."
The word of the Court is respected by the power of its reason and not by reason of its power. Likewise, in a worthy cause, every voice at the Bar must be judged in the light of the weight of its appeal and not by the badge worn on the sleeve of the speaker.
Justice HR Khanna, a figure to whom we must necessarily turn in times like these, expressed his concerns thus in his own memorable fashion:
“We must forever be conscious of the great past of the profession, the imprint the members of the Bar have left on the sands of time and the glorious role they have on occasions played as sentinels of cherished values and basic liberties. The members of the Bar, there can be no doubt, are inheritors of great traditions.”
It is in the spirit of these great traditions that our endeavors must endure, lest we be judged by history for having silently ceded, in a single moment of crisis, the rights and liberties that took decades of struggle to secure.
The author is a Senior Advocate practicing at the Supreme Court of India.