The raison d'etre of the Indian State as legal protector of the citizens' rights (parens patriae) is on test. The pandemic induced unprecedented situation - "the winter of our civilization", has prompted public spirited citizens and groups to petition the Supreme Court for enforcement of the fundamental rights of millions of citizens rendered destitute. A perspective on the efficacy of the Court's role as an assertive facilitator of fundamental rights transcending a "majoritarian premise" is the burden of this piece.
Over the years, the Supreme Court has evolved a progressive jurisprudence of human rights. The Right to Life with dignity enshrined in Art. 21 of the Constitution stands at the pinnacle in the hierarchy of rights and through an expansive judicial interpretation embraces within its sweep, all rights necessary for its effectuation including the right to livelihood, shelter, health and clean environment. The issue of basic rights of the destitute migrants and others is presently before the Court.
Serving as "the bridge between life and law", judges of the Court have exercised their judicial review jurisdiction to call power to account on the touchstone of constitutional values and distrust of concentrated power. Illustrative landmark pronouncements of the Court include amongst others; Maneka Gandhi ( 1978), Prem Shankar Shukla (1980), Minerva Mills (1980), Francis Coraile Mullin (1981), S.R Bommai (1994) and more recently Nagaraj (2006), I. R Coelho (2007), NALSA (2014), Nambi Nayaran (2017), Puttaswamy (2017) and Navtej Johar (2018) et, al.
The elevating effect of these judgments is somewhat diminished by recent decisions of the Court including its decision in Romila Thapar (2018), and its approach in cases involving liberty of conscientious dissenters in the Art. 370 abrogation related cases, cases of CAA protesters and in the ongoing case relating to displaced migrants who were denied orders for transportation because they were forced by heart wrenching circumstances to sleep on railway tracks and lost their lives in the process. The Court's passive approach in ensuring the enforcement of its decisions inter alia in cases involving lynching and honour killings in Tehseen Poonawallah (2018) and Shakti Vahini (2018), respectively, have robbed the judgments of their efficacy in advancing constitutional goals. The inconsistency of the Court in exercising its 'nudge' or 'suggestive' jurisdiction qua the Government was evident, when contrary to precedents cited, it declined to even suggest to the Government the desirability of enacting a comprehensive stand alone legislation against custodial torture prayed for in a petition preferred in public interest. And this, despite the recommendations of the Select Committee of the Parliament, the Human Rights Commission and the Law Commission of India. Inexplicably, the Court chose not to carry to its logical conclusion its own ruling in DK Basu(1978) that torture was a "wound in the soul". The Court's reluctant libertarian response in applying the bail and not jail principle expounded by Justice Krishna Iyer as far back as 1977 and still not departed from, is evident in Chidambaram's case amongst others. The recent refusal of the Court to hear the petitioner in an ongoing public interest litigation for succour to the migrants, merely because he is an office bearer of the principal Opposition party is wholly inexplicable, in view of the several cases where political organizations have, in the past, been heard by the Court. Political parties are integral to parliamentary democracy – a part of the basic structure of the Constitution, and cannot be precluded from espousing causes of public interest, consistent with the Court's enabling rulings on locus standi.
Considering the latter set of judgments referred to above, can it be said that the apex court as sentnel on the qui vive, has consistently followed its own decisions, viz, that the judicial arm of the State has a duty to ensure and uphold the supremacy of the Constitution( Navtej Johar), that the Court is under a duty to remind the key duty holders about their role in the working of the Constitution(Manoj Narula,2014) and that it is the duty of the State not only to protect human dignity but to facilitate it by taking positive steps in that direction(M. Nagraj), is the question.
On first principles of constitutionalism, the Court, as a counter majoritarian institution, is mandated by its constitutive charter to act as a bulwark against infraction of the citizens' constitutional rights by the State. In a contest between principle and power, it is expected to uphold the former. In harmonizing constitutional equities relating to human rights, the apex Court must lean in favor of the individual as against the State on the incontrovertible premise that State exists for the citizens; not vice versa. And it must ensure that its decisions in furtherance of human rights are diligently enforced by instrumentalities of the State, as commands of the Constitution
More importantly, the Court's decisions must reassure the nation of its capacity and commitment to script a consistent construct of constitutionalism that would advance the nation's ideals. Indeed, vagaries and subjectivity in its judgments, ill serve its purpose. Since even the greatest institution is vulnerable to decline, the Court must forever remain vigilant and profit from the sage counsel of an eminent Judge that "…abnegation in a matter where power is conferred to protect the interests of others against measures which are violative of the Constitution are fraught with serious consequences…", (per H.R khanna J. in State of Punjab v Khanchand, 1974).
Judge Cardozo reminded us years ago that "the process of justice is never finished, but renews itself generation after generation", And because the defence of power located in moral authority is a perpetual project, the Court must stand out for the objectivity, consistency and intellectual integrity of its judgments. This alone will vindicate its role as arbiter of constitutional conscience and enlist for it the "uncoerced allegiance" of people who cherish their freedom and dignity. Hopefully, we will remember 2020 not only as the year of a devastating human tragedy but also as the moment when we invested our democracy with dignity, when hope triumphed over despair.
The author is a Senior Advocate and former Union Law Minister. Views Are Personal Only.