A docket full of unresolved constitutional matters

During the formulation of the Indian Constitution, it was proposed that any petition alleging violation of fundamental rights by the state should be decided judicially within a month. Although the resolution did not, ultimately, find its way into the text of the Constitution, it nevertheless expressed a point of great importance: between the individual and the state, there exists a substantial inequalities of power. While the infringement of rights – whether through executive or legislative action – is relatively costly for the state, it is the individual, or individuals, who pay the price, and then post them by the pillar to affirm constitutionally guaranteed rights. needed. As a result, a constitution is completely ineffective if a right-infringing remain so It is allowed to exist and persist for months, or even years, before it is finally resolved (and often, by the time resolution comes, it is too late to have any practical significance).

blow to accountability

This point, of course, is not limited to the infringement of rights, but extends to all-important constitutional questions arising in the course of controversial state action. Issues surrounding the federal structure, elections, and many other issues involve questions of power and accountability, and the longer it takes courts to resolve such matters, the more we move from the realm of accountability to the realm of impunity. .

In this context, as 2021 draws to a close, a look at the docket of the Supreme Court of India reveals highly important constitutional matters that were long overdue when the year began, and are now just one without any sign of resolution. years old. Around the corner. All these matters involve important questions about state power, accountability and impunity. As a result, the longer they hang around without judgment, the more damage is done to our constitutional democracy’s commitment to the rule of law.

Kashmir, Electoral Bonds

What are some of these cases? First, there is a constitutional challenge to the Presidential Orders of August 5, 2019, which effectively diluted Article 370 of the Indian Constitution, and bifurcated the centrally-controlled state of Jammu and Kashmir into two union territories. There is a widespread tendency to view the Kashmir question as a “settlement” after the events of August 5, 2019, as it is now a political impossibility to revert to the pre-2019 status. remain so,

Sadly, this trend has also gripped the court with how diligently it has avoided hearing and adjudicating the case. But politics aside, the case raises some fundamental questions about constitutional power and accountability.

First, it raises the question whether the Center can take advantage of the status of Article 356 in a state – at a time when no elected government and legislature are in existence – to make permanent and irreversible changes in the structure of the state itself. This answer would have important implications not only for Jammu and Kashmir but for the federal structure as a whole: India has a long history of misuse of Article 356 to “get rid” of inconvenient state governments, and the power it already gained. Another extension has been made. The Center will skew an already sloppy federal plan.

Second, the matter also raises the question of whether, under the Constitution, the union legislature has the authority to change not only the boundaries of a state (the power conferred by Article 3 of the Constitution), but also a state to a union territory. I have the right to degrade (something that has never been done before 5th August 2019). if it turns out That the union legislature had this power would essentially mean that India’s federal structure is entirely at the mercy of Parliament: Parliament can, constitutionally, convert India from a union of states to a union of union territories. Yes, if she so desires. Needless to say, this would – at the same time – signal a significant shift in power to the Centre.

As long as both these questions remain undecided, however, the August 5, 2019 Acts will likely remain legal, with the possibility that they may be replicated in other parts of India. For this reason, the delay of two and a half years in hearing and answering these questions by the Supreme Court is unconscionable.

Another long-pending matter is the constitutional challenge to the electoral bond scheme, which has now been four years old. The electoral bond scheme authorizes unlimited, anonymous corporate donations to political parties, making electoral funding completely opaque to the public, as well as being structurally biased towards the party in power at the centre. In several central and state election cycles over the past four years, thousands of crores of rupees have been spent in anonymous political donations, thus affecting not only the integrity of the election process but also the constitutional right of citizens to an informed vote. However, apart from two interim orders, the Supreme Court has refused to hold a full hearing on the constitutional challenge. In a few months’ time, it will be a full five-year cycle of central and state elections, with a case still awaiting hearing: another black mark on the Court’s record.

It is important to note that in both these cases, the Supreme Court’s inaction is not neutral, but in favor of its beneficiaries. remain so, In other words, by not making a decision, the Court is in effect – in favor of one of the parties – but without any reasoned decision that justifies its stand.

other major issues

The same is true for many other cases pending in court. For example, till 2013, the Gauhati High Court held that the Central Bureau of Investigation (CBI) was not established under any statutory authority. The decision was immediately stayed upon appeal to the Supreme Court, but it was never heard in the intervening years. Thus, the CBI continues to function – often controversially – despite a decision by a Constitutional Court that has found its existence illegal. Recently, constitutional challenges to the Citizenship (Amendment) Act (CAA), filed in the immediate aftermath of the law’s enactment, went unheeded, with section 43(d)(5) of illegal activities being heavily criticized The Challenges (Prevention) Act, which makes the grant of bail effectively impossible, and has been responsible for many years of imprisonment. The challenge to section 43(d)(5) is perhaps the one that directly affects civil rights, as this section is invoked on a regular basis (most notorious, in recent times, in the Bhima Koregaon case). ). And such cases are legion.

It injures the judiciary

other than to benefit the party to whom the benefit remain so – As we have seen, invariably the state – such judicial evasion is also detrimental to the accountability of the judiciary. Once a court has decided a case, its arguments – which by definition must be public – can be publicly scrutinized and, if necessary, criticized. In the absence of judgment, however, while the court’s inaction plays as important a role on the ground as its action, there is no judgment—and no argument—with which the public can engage. For obvious reasons, this also has serious implications for the rule of law.

It must be acknowledged that the responsibility of constitution of benches and scheduling of cases, especially such matters which are to be heard by larger benches, rests entirely with the Chief Justice of India (CJI). While the previous three CJIs have been criticized for their excessive respect for the executive, the current CJI has emphasized the importance of the rule of law and independence of the judiciary. One way to demonstrate that the action may involve hearing and deciding important constitutional matters pending before the court.

Gautam Bhatia is a lawyer based in Delhi.