The Supreme Court of India enjoys an extraordinary status in the hearts and minds of Indians. The citizens look up to it when it comes to keeping the essence of the nation intact and insulated from attacks by the Executive of the day. The Court has created for itself an exalted position over the last seven decades by assuming the role of a sentinel on the Qui Vive (“on the alert” or “vigilant”).
Part III of the Constitution of India contains Fundamental Rights and Article 13(2) thereof mandates that,
“The State shall not make any Law which takes away or abridges the rights conferred by this part and any Law made in contravention of this Clause shall to the extent of contravention be void.”
Thus, there is a two-fold provision — prohibiting the state from making an unconstitutional law, and simultaneously declaring that such a law would be void. Article 14 contains a positive injunction against the state:
“The State shall not deny to any person equality before the Law or the Equal Protection of the Laws within the territory of India."
Affirmative action on the part of the State in favour of disadvantaged sections of society is within the framework of liberal democracy. Socio-economic justice is part of the equality clause.
Equal protection also means right to equal treatment of citizens. This is the essence of Article 14, a basic feature of the Constitution, which obliges the courts, especially the Supreme Court, to review state-made laws and declare them as unconstitutional, if found to be so.
The Court cannot desert its duty to determine the constitutionality of an impugned statute. And so, the decision of the Supreme Court, led by the Chief Justice himself, to defer the examination of the challenge to the much talked about Citizenship (Amendment) Act, 2019 is, to say the least, disappointing.
The Court should have put aside other matters and heard the group of writ petitions challenging the validity of this ex-facie unjust law. The winter vacation is hardly an excuse to defer such a challenge.
Even if the judges wanted to enjoy their much deserved winter vacation, their refusal to stay the law is even more disturbing. Such an order would have immediately defused the tempers running high across the nation, and, “We, the People” could have breathed a sigh of relief.
Instead, the judges have left us to fend for ourselves in the streets of our cities. The cost of this decision by the Court will only become clear with time.
The granting of a stay order against the operation of this citizenship law would not have caused any prejudice to public interest whatsoever. On the contrary, it is my belief that it would have served the public interest well. It is true that there is, generally, a presumption in favour of constitutionality of a law. But that is not an absolute rule. If the Act ex-facie violates the fundamental rights of citizens, a mere presumption which decides the burden cannot serve that law.
We must beware that the popular saying, “Nero fiddled while Rome burned”, does not come true for this great nation. The Supreme Court, in recent years, has shown its leanings in favour of the Executive.
In a series of decisions, the Court has, surprisingly, justified many of the state’s actions, which either needed a deeper probe or simply to be declared unlawful.
In fact, the Court is almost proving that it stays in ivory towers. After the appointment of the current Chief Justice, those of us who admire the Court had expected a departure from such a course.
The Preamble is an irreversible contract between the state and its people to keep India a “Sovereign, Socialist, Secular, Democratic Republic”, and, “to secure to all its citizens” justice, equality, fraternity and liberty of thought, expression, belief, faith and worship."
One can only hope that the Court introspects and intervenes forthwith to stop any bloodshed in the country, and assuage the sentiments of a large section of the society that feels they are no longer wanted.
The great judge, Justice HR Khanna, in the celebrated Kesavananda Bharati case declared that the “State shall not discriminate against any citizen on the ground of religion only”, and, interpreted Articles 15(1) and 16(2), even before the “secular” word was added to the Preamble.
All citizens, including judges, must remember the words of BR Ambedkar.
These words appear too relevant today. Will the judiciary’s conscience awaken soon?
The author is a Senior Advocate at the Supreme Court of India. This article first appeared in the Indian Express.