[Tryst with the Constitution] Student protests: A fitting case for a suo motu intervention by the Supreme Court

Earlier this week, the Delhi High Court refused to entertain a request to urgently list a public interest litigation (PIL) alleging excessive use of force by the Delhi Police during student protests in the national capital on Monday. The Chief Justice reportedly remarked, “Don’t drag the court into all this.” Subsequently, the Supreme Court also declined urgent listing of a similar petition.

At one level, the courts were well within their powers to decline urgent listing. Constitutional courts in India enjoy considerable discretion in deciding which matters they entertain, which they decline and with what urgency. This is particularly true of the their PIL jurisdiction (including suo motu proceedings) and the special leave jurisdiction, where the Supreme Court has either refused to lay down clearly articulated thresholds governing intervention or has failed to apply them consistently. Resultantly, the courts have retained broad discretion over the nature of cases and disputes they hear.

However, in the present case, the Court’s own jurisprudence points to the fact that there could scarcely have been a more fitting case not merely for urgent listing, but more importantly, for a suo motu intervention by the Supreme Court.

The creation of PIL was prompted by a two-fold realisation on the part of the Court: first, the inaccessibility of courts to large sections of society, particularly those belonging to poor and disadvantaged backgrounds; and second, the manner in which procedural technicalities often hindered efforts to hold public authorities accountable. The Court recognised that strict rules of standing, which required only those personally aggrieved to approach it, frequently left violations of rights without an effective remedy. It implicitly also acknowledged that violations of fundamental rights often occurred at the hands of the State itself and that those most affected by such violations were frequently the least capable of approaching constitutional courts. Most importantly, waiting for the “right” litigant often meant that unconstitutional actions went unaddressed.

In the seminal decision in SP Gupta v. Union of India (1981), the Court observed:

“It is also necessary to point out that if no one can have standing to maintain an action for judicial redress in respect of a public wrong or public injury, not only will the cause of legality suffer but the people not having any judicial remedy to redress such public wrong or public injury may turn to the street and in that process, the rule of law will be seriously impaired.”

Similarly, in Bandhua Mukti Morcha v. Union of India (1983), the Court emphasised that procedural rules had to be relaxed where necessary to ensure the enforcement of fundamental rights, observing that failing to do so would amount to a “mockery of the Constitution”.

Suo motu jurisdiction was an extension of these principles. While PIL permitted a public-spirited citizen to bring a grievance before the Court, suo motu proceedings dispensed even with that requirement, allowing the Court to take cognisance on its own where circumstances appeared sufficiently serious to warrant judicial attention.

Collectively, these jurisdictions were based on the premise that constitutional courts could not remain passive spectators to allegations of State excess and violations of fundamental rights. Over the years, the Court has exercised these jurisdictions to intervene in cases involving the plight of bonded labourers, undertrial prisoners, custodial violence, police brutality, environmental degradation and other instances where fundamental rights were implicated by State action.

Viewed against this background, allegations concerning police action against protestors appear to sit squarely within the original rationale of PIL, as they directly implicate the right to life and personal liberty under Article 21, alongside the freedoms of speech, expression, and peaceful assembly guaranteed under Article 19.

Compared to PIL, the Court’s exercise of suo motu jurisdiction has remained relatively rare and has generally been reserved for situations of urgency, where waiting for a formal petition may itself frustrate the purpose of judicial intervention. In such cases, the Court has departed from ordinary procedural requirements and acted on the basis of newspaper reports, letters, public speeches and information received through a variety of informal channels. The present episode falls within this narrow category of cases, as is evident from the Court’s own precedents.

For instance, in 2013, the Supreme Court acted suo motu upon reports of a woman and teachers being publicly assaulted by police officers, observing that the incident had “shocked the conscience of the entire nation” (In Re: Press Reports Captioning ‘Punjab Cops Beat up Woman in Public’ and ‘Police Lathi-Charge Protesting Contractual Teachers in Patna’). Prima facie reports suggest that incidents involving the use of force against female protestors were witnessed earlier this week as well.

An even closer parallel can be found in the events at Delhi’s Ramlila Maidan in 2011. Protestors led by Baba Ramdev had assembled to demonstrate against black money allegedly stashed abroad. In the early hours of the morning, while many of the protestors were asleep, the Delhi Police forcibly cleared the site and used batons and tear gas, resulting in several injuries and the death of a protester. Within a day, the Supreme Court took suo motu cognisance of the incident and summoned representatives of the Union of India, the Government of the National Capital Territory of Delhi and the Commissioner of Police. The Court directed them to file affidavits explaining the conduct of law enforcement authorities and the circumstances in which force had been employed. Following detailed proceedings, the Court ultimately held that the actions of the authorities were unconstitutional and awarded compensation to the family of the deceased and to those who had suffered injuries. [In Re: Ramlila Maidan Incident (2011)]

These precedents demonstrate that allegations of police excess have historically been regarded as matters warranting immediate judicial scrutiny. Viewed in that light, the Court ought to act with similar promptness in the present instance as well.

Yesterday, the Delhi High Court agreed to hear the petition alleging police excess, directed the authorities to preserve the CCTV footage and other evidence relating to the incident, and sought their response. The matter has now been listed for hearing on September 11. The Supreme Court, however, has not yet acted suo motu. Earlier today, the Chief Justice reportedly remarked that the Court may consider intervening on account of the closure of metro stations serving the Supreme Court due to the protests. The contrast is noteworthy. The Supreme Court appears willing to respond more readily to disruptions affecting access to the institution itself than to allegations of police excess that directly implicate fundamental rights.

Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy.

Views are personal.