Amidst the continuing fall-out of the CAA/NRC/NPR protests, and the new fall-out of Covid-19, some of India's High Courts have delivered admirable judgments protecting civil rights in fraught times. In Kamil Siedczynski v Union of India, a single-judge bench of the Calcutta High Court set aside a "Leave India Notice" ["LIN"] issued by the government to the Petitioner, who was a Polish student studying in India. The ostensible basis of the Notice – issued under Section 3(2)(c) of the Foreigners Act – was that the petitioner, being a foreign citizen, could not have participated in "political rallies" while in the country. The petitioner impugned the LIN on both procedural and substantive grounds: namely, that he had not been heard, that the LIN was not supported by any reasons, and that it violated his rights under Article 21 of the Constitution. The State, on the other hand, raised a set of familiar arguments: it relied on its prerogative powers in matters of entry or expulsion into India, submitted materials in a sealed cover, denied any obligation to accord a hearing, and argued that foreigners could not agitate constitutional rights that flowed from Article 19.
Sabyasachi Bhattacharyya J found for the Petitioner on all counts. He began by noting that the Petitioner was lawfully in India on a valid student visa. Consequently, the right of the Petitioner to reside in India – flowing from his visa – could not be revoked without a hearing (paragraph 49). Bhattacharyya J then observed that the material in the "sealed cover" was essentially two sheets of paper that referred to the Petitioner's attendance at an anti-CAA rally, and a decision taken by "higher formations" to expel him from the country. This led him to consider the substantive question at issue. On this, Bhattacharyya J held that:
For a brilliant student of the academic standard of the petitioner, it is but natural that the petitioner shall have free interactions in an atmosphere of freedom with Indians, at least while in India. (paragraph 58)
The very premise of such qualifications, which the petitioner has, provide for the petitioner's ability to engage in such activities as indicated above. Hence, the 'life' and 'personal liberty' of the petitioner cannot be limited to a bare existence worth the name but also contemplates his right to actively pursue his interests and fields of specialization, which are necessary for the petitioner to lead a healthy life. The personal liberties of any person cannot be restricted merely to the right of staying in India. Since the student visa in favour of the petitioner confers the right on the petitioner to live in India up to August 30, 2020, the rights to pursue his intellectual interests and to seep in the ethnicity and lifestyle of different communities in India also go hand in hand with his right to life. (paragraph 59)
Thus, even though Article 19 was not available to the Petitioner (as a non-citizen), Article 21 – available to "all persons" – covered his right to participate in protests and rallies. Additionally, Bhattacharyya J. pointed out that the powers under Section 3 of the Foreigners Act were not "unfettered", but had to be exercised within the constitutional framework. Interestingly, he also held that some of the earlier Supreme Court judgments – that seemed to indicate that no hearing was necessary as a Section 3 order was a "purely executive order" – were not only distinguishable, but had also been overtaken by the progress of Article 14 and 21 jurisprudence, which now required a more "liberal" approach. Thus – and in sum – Bhattacharyya J condemned the actions of the government as a "paranoid overreaction" (paragraph 88), and set aside the LIN. The judgment stands out both for the lucidity and clarity with which it enunciates the relevant constitutional principles, and its refusal to simply defer to the State on questions of expulsion and the rights of foreigners. At all times, Bhattacharyya J. insisted, the State had to comply with its constitutional obligations: both in terms of respecting individual rights, and in terms of providing reasons for coercive action. Here – as often happens – the slightest scrutiny of the State's putative "reasons" (even though they were submitted in a sealed cover) resulted in a clear realisation that they were, in essence, no reasons at all.
Meanwhile, the Madurai Bench of the Madras High Court passed a strong order on the right to protest. The plea concerned the denial of police permission to protest against the CAA/NPR/NRC, on grounds of inconvenience to traffic, and law and order. Justice G.R. Swaminathan noted that "officials invariably deny permission for holding meetings protesting governmental laws and policies", citing either Section 30 of the Police Act of 1861 or Section 41 of the Chennai City Police Act of 1988 (both laws clothe the police with extremely broad powers to deny permission to protests). Citing recent observations by judges of the Supreme Court (Chandrachud and Deepak Gupta JJ) in extra-judicial speeches, Justice Swaminathan then observed that:
The right to hold public meeting is traceable to Article 19(1)(a) and 19(1)(b) of Constitution of India. These provisions guarantee to all citizens the right to freedom of speech and expression and to assemble peaceably and without arms. The Constitution Bench of the Hon'Ble Supreme Court in the decision reported in (1973) 1 SCC 277 (Himat Lal K.Shah V. Commissioner of Police) held that the right to hold public meetings flows from Article 19(1)(b) and that the state cannot impose unreasonable restrictions. It was also observed that public streets are the natural places for expression of opinions and dissemination of ideas. It forms parts of the tradition of our national life. (paragraph 8)
In light of this, Swaminathan J noted that the task of the State authorities was to stand in aid of fundamental rights, dealing with law and order problems if – and when – they arose, and not to start with the "easy option" of curtailing rights. This was especially the case as in the present situation, the organisers had committed to abiding by all rules and regulations.
The denial of permission was thus set aside, although – in the meantime – Covid-19 had intervened, and there a fresh prohibition on public gatherings had been issued. Swaminathan J. therefore completed by holding that "the jurisdictional Deputy Superintendent of Police, will issue proceedings permitting holding of the event at the petition mentioned site immediately after the ban issued by the Government in the wake of novel coronavirus pandemic is lifted." (paragraph 12)
Although brief, the judgment stands out, therefore, for three things: first, a reiteration of the principle that "public streets" are "natural avenues" for the exercise of constitutional rights; secondly, a reiteration that the obligation of the police and other authorities is to support the exercise of these rights, instead of moving to stop them on grounds of administrative convenience; and thirdly, effective relief by directing the grant of permission once Covid-19 passed (whenever that might be!). During a time when there is substantial judicial hedging even on such basic principles, the categorical nature of this judgment is welcome.
Covid-19 has caused substantial economic dislocation. One form of dislocation has been loss of income (both to individuals and businesses) caused due to the necessity of social distancing and of working from home. This precipitous fall in income – that has hit some sectors particularly hard – has led to calls for economic relief packages across the world. These have included demands for direct cash transfers, for the government to pay salaries of people stuck at home, and – crucially – a temporary moratorium on evictions, recoveries of dues, and other similar forms of coercive financial action.
In view of this, on March 18 and 19, the High Courts of Allahabad and Kerala passed brief orders. The Allahabad High Court directed that in view of the extraordinary situation, and for a limited period of two weeks (until 6.4.2020), recovery proceedings by district or statutory authorities, auctions, orders for presence of persons, demolitions, and evictions would stand suspended. The reason – as the High Court noted – was that given the imperative of social distancing and the impact on the right to health, such temporary relief was essential. The Kerala High Court's order was somewhat broader: it directed recoveries under the SARFAESI Act, the Income Tax Act, VAT and Motor Vehicles tax be deferred to after the 6th of April. Crucially, and at the same time, the High Court left it open for State authorities to move for modification of the order in specific individual circumstances; thus, broadly, the default was a two-week relief period, subject to reasonable exceptions, if established in Court.
As Swaroop Mami notes in this piece, the High Courts' orders were both constitutionally sound, and also – at a basic level – humane:
These are vital orders for both protection of fundamental rights of citizens and to grant some kind of relief to a sagging economy in the wake of the virus. A businessman, already having to pay salaries without business, deserves a two-week tax relief. As any tax practitioner, be it a chartered accountant or a lawyer, will tell you – the two weeks leading up to March 31 are when the tax department, desperate to hit annual revenue targets, will be at its most unreasonable. A relief against this is always welcome, but even more so during this crisis. Also, it is basic human decency that during an unprecedented worldwide pandemic requiring self-isolation, aperson should not be evicted from her house for recovery of bank dues, and the State should not carry out demolitions of buildings for violation of building laws. These can wait for two weeks.In the case of the Kerala High Court, the orders were passed for the protection of Court officers. It is important to understand that like hospitals, courts can never be fully shut down – bail, habeas corpus writs and urgent civil relief often cannot be postponed. The best one can do is reduce the burden on the courts, which is what the Court sought to do.
These are vital orders for both protection of fundamental rights of citizens and to grant some kind of relief to a sagging economy in the wake of the virus. A businessman, already having to pay salaries without business, deserves a two-week tax relief. As any tax practitioner, be it a chartered accountant or a lawyer, will tell you – the two weeks leading up to March 31 are when the tax department, desperate to hit annual revenue targets, will be at its most unreasonable. A relief against this is always welcome, but even more so during this crisis. Also, it is basic human decency that during an unprecedented worldwide pandemic requiring self-isolation, aperson should not be evicted from her house for recovery of bank dues, and the State should not carry out demolitions of buildings for violation of building laws. These can wait for two weeks.
In the case of the Kerala High Court, the orders were passed for the protection of Court officers. It is important to understand that like hospitals, courts can never be fully shut down – bail, habeas corpus writs and urgent civil relief often cannot be postponed. The best one can do is reduce the burden on the courts, which is what the Court sought to do.
It is therefore deeply unfortunate that both these progressive orders were stayed ex-parte by a bench of the Supreme Court, in an entirely cryptic, unreasoned, one-paragraph order. In his article, Swaroop deals with the flawed stand of the Union of India at some length, and I will not rehearse those arguments here. It is, however, important to note that in granting this ex parte stay within hours of filing, the Supreme Court allowed the government to break every known procedural rule in the book; moreover, as Manu Sebastian points out in this Facebook post, many of the directions of the Allahabad High Court did not concern the interests of the central government at all, but rather, those of the UP state government – which did not appeal the order.
Two further points. The State's SLP – as Swaroop points out – is almost entirely based on the issue of separation of powers and the encroachment of the judiciary into the domain of policy. Here, however, is the bizarre thing: for the last three decades, the courts – and especially, the Supreme Court – have repeatedly "encroached" into the domain of policy, even to the extent of engaging in judicial law-making. The principal argument for this has been that because of the "vacuum" caused due to legislative and executive "inaction", the Supreme Court has had to step in. From that perspective, even if you believe that the Allahabad and Kerala High Court orders were "encroachments" (and Swaroop argues persuasively that they were not), they were scarcely outliers: here is a situation involving a global pandemic, with cities and entire states under lockdown, where the central government has (so far) failed to come up with a relief package, and where – to tide over an emergency – the High Courts passed narrow and temporary orders dealing with enforcement relief. Does this even begin to compare with the Supreme Court's sweeping judicial law-making in a case like Vishaka, or its recent use of Article 142 to legalise police interrogation techniques? Separation of powers, thus, seems to have become just another weapon of convenience in the Supreme Court's armoury – it doesn't exist on Tuesday and Wednesday, when the Court is perfectly content with passing legislative guidelines, but is suddenly birthed on Thursday, when the State comes up and asks for a stay.
Secondly, the Supreme Court order notes that the basis of the stay is that "the Government is fully conscious of the prevailing situation and would itself evolve proper mechanism to assuage concerns and hardships of everyone." This is an astonishing statement for a constitutional Court to make – a level of abject deference reminiscent of its September 2019 order in the Kashmir lockdown case, where the government was politely requested to ease restrictions on fundamental rights "subject to national interest." Notably – and contrary to the two High Court judgments that it was staying – no details whatsoever are provided in the order of what the "proper mechanism" might look like; indeed, that same evening, the Minister in charge of the Covid Taskforce herself admitted that there was no clarity on when the relief package would be ready. This in itself is a complete vindication of the two High Court judgments, which – it needs to be repeated – granted narrow and temporary relief precisely because the government had not acted.
In essence, therefore, the Supreme Court (a) stays two detailed and well-reasoned orders of High Courts that temporarily protected individual rights in the absence of government action, (b) does so in flagrant violation of procedure, and (c) on a vague and completely open-ended assurance of the government. This, one will note, is a courant with the Supreme Court's actions in recent times, reinforcing the impression that at this point, the Court's functioning is more about "cohesion" with the government, rather than protecting people's rights.
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Gautam Bhatia is a Delhi based Lawyer and Writer.
This article was first published here