Dushyant Dave Writes: On Manipur, Supreme Court Must Be More Proactive

The videos on social media and reports of the women being publicly assaulted by a group of people in Manipur are among the worst manifestations of communal frenzy. The Supreme Court of India has, belatedly, taken suo motu cognisance of the situation and observed: “We are expressing our deep concern. It is time that the government really steps in and takes action. This is simply unacceptable… We will give a little time for the government to take action otherwise we will step in… Who knows whether it was isolated or if there is a pattern?”.

The SC was initially moved on May 6 through a PIL. During hearings of writ petitions seeking the protection of the fundamental rights of lakhs of citizens, which were allegedly under threat due to the complete failure of law and order machinery in Manipur, the Court hesitated and dithered in passing concrete orders. It took the following assurance of the government presented by the learned Solicitor General to be the gospel truth: “We, on this side, are for the public… The matter may be taken by the petitioner with utmost sensitivity because any misinformation may aggravate the situation in the state. Things are returning to normalcy after a lot of efforts from the central and state government(s).”

The SC advised senior advocate Colin Gonsalves, who was appearing for the petitioner, that “your scepticism cannot lead us to take over the law and order. We don’t want this proceeding to be used as a platform for further escalation of violence and other problems which exist in the state… If you have suggestions we can take. Let’s not see this as a partisan matter, it’s a humanitarian issue…We should be conscious of the remit of the Supreme Court.”

For over two months, the state seemingly failed to act on the incident now seen in videos which it knew about despite the Union Home Minister’s much-touted visit. The Prime Minister’s long silence was deafening, especially since he never fails to attack Opposition-lead state governments for even minor incidents.

The SC must be conscious at all times about its role under Article 32, a fundamental right guaranteed to every citizen: “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.” B R Ambedkar spoke on this provision on December 9, 1948, in the Constituent Assembly: “If I was asked to name any particular article in this Constitution as the most important… I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it.”

The Supreme Court has been consistently inconsistent in its approach towards the enforcement of fundamental rights. It is quick to develop fine jurisprudence but equally quick in not applying it. There are several instances in which the Court has failed to act. Hundreds of people are routinely killed in fake encounters across the country, houses are demolished without any sanction of the law and minorities are being violently attacked by the majoritarian mobs and yet, the highest court maintains stoic silence. Then, what good is the following law declared by it?

“The compulsion for the judicial innovation of the technique of a public interest action is the constitutional promise of a social and economic transformation to usher in an egalitarian social order and a welfare State… More importantly, the court is not merely a passive, disinterested umpire or onlooker, but has a more dynamic and positive role with the responsibility for the organisation of the proceedings, moulding of the relief and — this is important — also supervising the implementation thereof… Indeed as the relief is positive and implies affirmative action the decisions are not ‘one-shot’ determinations but have ongoing implications. Remedy is both imposed, negotiated or quasi-negotiated,” the SC said in Sheela Barse v. Union of India (1988).

If this is the approach of the highest court, why did it not act to protect the people of Manipur? Over 100 people have died, state armouries were looted and automatic weapons were used. The writ petitions filed were in the nature of Public Interest Litigation and had sufficiently alleged the grossest violation of the fundamental rights of citizens. The Court was obliged to intervene and not merely wish it away fearing that its platform was used for political purposes.

It is easy for the ruling party to first allow mayhem in a state and then stand before the Court and pretend that the situation is under control. The SC had a duty to go into the reasons for the violence. It also had the duty to take measures, including the appointment of an independent committee of experts including retired Supreme Court judges, reputed retired police officials and civil servants to look into the issue and give a report within a week. This would have helped the Court in issuing appropriate directions to protect the lives of citizens and take further ameliorative and rehabilitative measures to enforce fundamental rights including those under Articles 21 and 14.

The Supreme Court must remember that the Constitution is a living document. It must bear in mind that: “The principle of constitutionalism is now a legal principle which requires control over the exercise of governmental power to ensure that it does not destroy the democratic principles upon which it is based. These democratic principles include the protection of fundamental rights. The principle of constitutionalism advocates a check and balance model of the separation of powers.” — Constitution Bench of nine Justices in IR Coelho v. State of Tamil Nadu (2007).

The author is a Senior Advocate, Supreme Court of India

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The article was first published in The Indian Express. Live Law republishes this article on the request of the author.