A new judicial tool for ‘complete justice’

Alt News co-founder, Mohammad Zubair, is in jail despite the Supreme Court of India granting him interim bail last Friday due to his remand by the Delhi Police in another case. The Court was aware of the futility of the bail order. Still, the court did not direct his release by granting him bail in the second case as well.

The order pertains to a case challenging the Allahabad High Court judgment refusing to quash the First Information Report (FIR) against Mr. Zubair. The charge was under Section 295A of the Indian Penal Code (IPC) – Outraging religious feelings… insulting religion or religious beliefs. Later, a charge was added under Section 153-A of the IPC for promoting religious enmity.

The court was explained that there is no one Prima facie Case against Mr. Zubair. At the same time, it was shown that the case itself was a tool to quell dissent. The political malice behind the allegation was very clear. The court also accepted the arguments, as is evident from the grant of bail. Nevertheless, the Court held that the order was only in respect of the case registered in Uttar Pradesh. This means continued detention of Mr. Zubair.

Challenges before the Judiciary

The Supreme Court of India is considered to be the most powerful apex court in the world because of its extensive power of judicial review. It has the power to issue writs under Article 32 of the Constitution. It also has original jurisdiction under Article 131 of the Constitution. There is also broad appellate power under Articles 132, 133, 134 and 136 of the Constitution. More importantly, according to Article 142 of the Constitution, the Supreme Court has “power to make such order as is necessary for doing complete justice in any matter or matter pending before it”. Yet, the apex court has shown itself helpless when issues of personal liberty have been brought up to it on several occasions. Several political prisoners remain in jail after their bail applications were repeatedly rejected by various courts. The executive has been able to file multiple FIRs in different states of India to ensure that dissidents are not released from prison, even if granted bail in some cases. Thus, the prison jurisprudence of the executive effectively transcends the bail jurisdiction of the court. Reports say that following the Supreme Court order, another warrant was issued against Mr. Zubair by a local court in Lakhimpur Kheri, Uttar Pradesh. This scenario, which reflects the new normal in the criminal jurisprudence of the country, presents significant challenges to the judiciary.

The Supreme Court cannot afford to be conventional if it really wants to deal with a situation where an aggressive executive hunts down his opponents in a systematic and incremental manner. Conventional legal wisdom declares that every criminal case is a case that should be dealt with as such and taken to its logical conclusion. In Mr. Zubair’s case also, the Solicitor General of India argued that “any order passed by the (Supreme) Court (in this case) would impede four judicial orders passed by two courts which have not been challenged”. It is the Court’s inability to remove this line of reasoning by invoking the spirit of Article 142, which has led to Mr. Zubair being in jail despite being granted ‘interim bail’.

The practice of registering multiple FIRs is extremely problematic. In the context of free speech, American legal scholar Professor Vincent Blasey identified “the historical period when intolerance to unconventional ideas is most prevalent and when governments are most capable and most likely to systematically suppress dissent”. The situation in India is exemplary.

More ‘Rule by Law’

In such difficult times the criminal justice system turns to the rule of law, which replaces the rule of law. For the purposes of witchcraft the law becomes an effective tool in the hands of the government and it acts as a class against the opponents of a regime. In this scenario, if the court erroneously assumes that the legal system of the country is governed by the principle of rule of law, there is bound to be misunderstanding and unjust consequences. In such a legal environment, it would be equally wrong to isolate each case, which is not the case in reality. Climate change is a difficult reality in the constitutionalism of a nation which no court can ignore.

Even in challenging times, a Constitutional Court should be able to devise a mechanism of its own to preserve the democratic foundation of the country by intervening in the incremental process of “deconstitutionalisation” of the country. Law professor Rosalind Dixon said in a recent study that “at least under certain conditions – sufficient independence, political support and curative power – courts can also play an important role in strengthening democratic processes and commitments”, and This, according to him, is “the essence of responsible judicial review”. The constitutional courts in Colombia and Brazil have developed a new doctrine of “state of affairs unconstitutional”. It enables the court to pass effective orders without deviating from the procedural rigor, addressing the structural deficiencies in the spirit of realism with a view to protect the fundamental rights. It is in some ways similar to the practice of Public Interest Litigation (PIL) in India and structural injunction in the United States.

create a judicial environment

Courts, undoubtedly, can sometimes protect the interests of the executive. It can also pose a serious threat to personal liberty, as was the case recently in his comments against activist Teesta Setalvad and former police officer RB Sreekumar. But in some rare situations, it can still act as a prescribed umpire who checks the executive’s excesses. The Supreme Court’s intervention in the Centre’s COVID-19 vaccine policy and the Pegasus episode reflect this point. The need is to expand the latter approach and create and maintain a democratic judicial environment that supports the cause of independence.

At least in principle, the Supreme Court of India is empowered to exercise its jurisdiction for the greater cause of independence, even by going down the traditional technical route. “Absolute justice” under Article 142 is used when the legal arguments raised by the State in Mr. Zubair’s case have the effect of subverting the goal of constitutional justice. The Court needs a new version of judicial activism, which the Court itself developed in the 1980s.

The origin of Article 142 shows that the framers of the Constitution have deliberately incorporated this provision by comprehensively modifying the earlier relevant provision in the Government of India Act, 1935. The Government of India Act, through section 210(2), says only about the enforceability of the orders of the Federal Court. Naturally, it did not contain the idea of ​​complete justice in the constitutional sense. Article 142, on the other hand, arms the Supreme Court with this supplementary power.

Interpretations of the scope of this provision have been varied, and at times conflicting. Some judgments advocated its restrictive use while some advocated its liberal and contextual application. In Delhi Development Authority Vs Captain Construction Company (1996), the apex court held that the power under Article 142 should remain “undefined and unlisted”, so that it remains elastic enough to be molded to the given position.

treat them as a class

It is essential for the Supreme Court of India to deal with political prisoners and dissidents facing multiple FIRs and going through unreasonably long imprisonments as a class. It needs jurisprudence at the standard level to deal with technical arguments that create a false notion of the rule of law when the root cause of arrest and detention is its lack. When a clear instance of curtailment of liberty of a person is placed before the apex court, it should be able to call for records relating to multiple FIRs and suo moto Add all stakeholders as parties (if necessary); The Court must immediately ensure that retaliatory imprisonment does not continue for a day. It can be difficult, yet not impossible. Mr. Zubair’s case is one (like many other cases in the past) that demonstrates the judicial deficit of the Supreme Court today. Therefore, it is imperative to develop an effective jurisprudence of “absolute justice” focusing on individual liberty. It is the exercise of this new judicial instrument that perhaps can preserve the democratic heritage of the country.

Kaleeswaram Raj is a lawyer in the Supreme Court of India.