C R Rajagopalachari, veteran fighter for independence and Industrial Minister of the interim government, and T Prakasam, Premier of Madras attend a meeting of the Constituent Assembly in the Council House Library, New Delhi. (Bert Hardy/Picture Post/Hulton Archive)
To the unending ignominy of the Supreme Court, four out of five judges, in the egregious “Habeas Corpus” case, endorsing a dictatorial and totalitarian regime, solemnly observed and dictated:
“Courts must presume that executive authorities are acting in conformity with both the spirit and the substance of the law : ‘Omina praesumuntur rite esse acts’, which means that all official acts are presumed to have been rightly and regularly done … [and] when a crisis arises in the life of the nation, the rights of individuals must be postponed to considerations of State and national safety must override any other considerations. I may add that there is nothing very unusual in this situation.”
The bizarre observation or presumption taken in the Habeas Corpus case: that ‘[t]he care and concern lavished … by the State is almost maternal’ overrode a plain prospect – that a judge ought to have a distrust of authority, and of the institution that wields it.
The puzzling view of the four men, however, in the Habeas Corpus was not in vacuum or surprising. Somehow, the narrative of Indian constitutional courts – with a few deviations – is the record of judgements that have been intuitively convenient with power, and uncomfortable with those seeking to resist or disrupt it.
Nevertheless, nearly four decades later, the Supreme Court was prompt in rejecting the Habeas Corpus line of reasoning as the court observed that: ‘ADM Jabalpur must be buried ten fathoms deep with no chance of resurrection’. However, “[t]he ghost of the judgment … [still] seems to stalk the land, despite being ‘buried ten fathoms deep’,” argues Navroz Seervai in his article titled “Are We Condemned To Repeat History?”. I, too, shall examine his claim later in the article.
Before I proceed with the underpinnings of constitutional provisions and legal schemes of specified modus operandi for judiciary and executive at the time of ‘emergency’, in the words of K.G. Kannabiran, “I strongly believe that the ends do not justify the means, even in a struggle. Ultimately, the fundamental question is, what means to you adopt to secure what ends? That was the big debate in those [Emergency] days. It must continue even today,” let us remind ourselves that it is the ‘means’ sought to reach the ‘end’ goal that distinguishes constitutional democratic country from a totalitarian rule.
These words of Kannabiran, as above, lay the edifice for the argument of this article: that in a constitutional democracy ‘means’ are as sacred as the ‘ends’. But how to recognize a situation where the means are getting flouted to achieve the ends, and to what extent? To answer this question, I begin with Gunter Frankenberg’s valuable insight: ‘Emergency situations arouse the ultimate challenge for the magic of constitutions because necessity tends to brush aside constitutional qualms. And justifying exceptional powers is likely to command a higher dose of deceit.’ As the country is undergoing a pandemic – a health emergency (The point, however, to be noted is that: The Indian Constitution has no provision for public health Emergency) – I shall argue that the excessive use of power by the State, under the garb of colonial-era pre-constitutional legislation, has unleashed a disproportionate force to attain the legitimate objective – something which the Constitution sought to repudiate. In his famous remark, Lord Acton avowed:
“I cannot accept your canon that we are to judge Pope and King unlike other men, with a favourable presumption that they did no wrong […] Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or the certainty of corruption by authority. There is no worse heresy than that the office sanctifies the holder of it. That is the point at which … the end learns to justify the means.”
Therefore, the question: that whether the ‘means’ today have become irrelevant in order to achieve the ‘objective’ in the name of ‘unprecedented situation’; ‘emergency situation’; ‘greater good’; ‘national security’; ‘doctrine of necessity’ – the terms that have never been subjected to scrutiny – defying the constitutional process, thereby resulting into the continuing colonial paradigm of Banana Republic and Kangaroo Courts?
The record, when scrutinized is revealing. Consider the illustrations:
The concomitant effect of over-broad legislation
The time is late evening, nearly four hours before midnight, 24th of March. The scene is a COVID-19 affected nation with the second largest population in the world. This nation has a written constitution, the basis of which is the rule of law, parliamentary democracy, independent judiciary, and above all the constitutional supremacy. The head of the government appears on the TV screen and imposes the ‘nationwide lockdown’ without any prior notice, bypassing the Parliament – with no scientific study backing the feasibility of centralized lockdown in a developing country of 130 billion when the 80% of the total cases comprised only five states at the time of announcement.
To impose lockdown, the government used Section 10 of the National Disaster Management Act – along with the full movement restrictions, closure of shops among others with the exception of ‘essential services’. The said section of the NDMA sanctions the National Disaster Management Authority to issue binding instructions and directions to the various state governments. The concomitant effects, however, of it have been devastating.
In pursuance of maintaining law and order to contain the contagious coronavirus, the memo stating that ‘the essential services are to remain operational’, seemingly has been forgotten by the police officers. There have been nationwide chronicles of cops stooping to frequent lathi-charge in order to cordon off the streets, with the horrendous report being of an individual dying in West Bengal as a result of lathi-charge. It is not an isolated episode, the yet another case of Jayraj and Bennix shocked the conscience of the entire nation. The outrage against the indiscriminate police assault is turning up countrywide. It is an outlandish fact that the lathi charge remains the default method to control crowd management in democratic India. The question, therefore, arises whether the situation necessitates the use of colonial-era methods to cordon off the streets, sanctioning the errant cops to misuse their power.
At the outset, the law dealing with the above problem needs to made clear. Basically, the power or authority to use force for ‘Maintenance of Public Order and Tranquillity’ comes from Section 129 of CrPC.
The dictum of 129 CrPC has been iterated by various High Courts and the Supreme Court in many judgments. In the case of Karam Singh vs Hardayal Singh And Ors., Hon’ble Punjab-Haryana High Court stated that before using any kind of force, three pre-conditions are to be fulfilled. Firstly, there should be an unlawful assembly with the object of committing violence or an assembly of five or more persons likely to cause a disturbance of the public peace. Secondly, such assembly is ordered to be dispersed and; thirdly, despite such orders, such assembly does not disperse.
While none of the conditions were followed as per the various reports in hand, it was a clear-cut contempt of court and violation of stated legal principles.
Besides this, the other methods amounting to a violation of rights and basic human dignity have been the use of Ink-Stamps for identification; stigmatic institutional quarantines; publication of personal information in public without any robust data protection laws among others; and sabotaging the federalism. However, the purpose of this article is not to go into the detail of every point since they have been extensively discussed in many other articles, the broader point, nevertheless, that I intend to convey through these smaller points is (a) use of proportionality test; (b) and the establishment of a means-ends relationship while determining the use of any legislation or order in force.
The position is similar at the state level. Here, at their level, the law in force is: the Epidemic Disease Act – a colonial regime legislation. Primarily, the power to seal specific areas and ban congregations have been derived from this Act with no check. Under the Section 2 of the EDA governments may pass any direction that they might deem “necessary to prevent the outbreak or spread” of an epidemic disease.
The facts, as stated, entails subject of significant public concern referring to the importance of personal liberty and the public interest. Public or society have an indispensable dividend in enforcement or non-enforcement of the said legislation and orders, initiated to curb the epidemic because it linearly affects them. The order or legislation, nevertheless, seeking to fulfil its objective must consider the quintessential balance between the incongruous interests of personal liberty and the larger public good. The motive of legislation and orders should be to dovetail two incongruous interest – on the one hand, to shield public from the hazards of spreading epidemic and on the other hand, respecting and maintaining the sanctitude of personal liberty and basic human dignity as a fundamental rights.
It is, thus, clear that there has been no rational nexus between the means (excessive and arbitrary instrumentalities) to achieve the end (curbing the spread of disease), as the excessive measures taken by the government, like their louche history, much have been the replication of a phrase – ‘that of a doctor who sees a patient of high fever and says the only way to bring down the fever is to kill the patient’. The vague and over-broad character of these pre-constitutional era legislation have unleashed a sweeping discretionary power and evidently the use of disproportionate force with arbitrary enforcement in the name of ‘necessary steps to prevent the outbreak or spread of an epidemic disease’ – with no intervention of Parliament at all. In short, the life and liberty of an individual is at the mercy and whims of the executive magistrates. Yet, the centralization of power with greater force, it is argued, is necessary for the ‘larger public interest’ at the time of ‘emergencies’ or ‘disaster’ as it enhances the efficiency of authorities. A constitutional republic with guaranteed fundamental rights, nevertheless, ought to have reminded time and again, in the words of W.H. Auden:
“The Ogre does what ogres can,
Deeds quite impossible for Man,
But one prize is beyond his reach:
The Ogre cannot master speech.
About a subjugated plain,
Among it’s desperate and slain,
The Ogre stalks with hands on hips,
While drivel gushes from his lips.”
The Supreme Court: In response
Since India have adopted the constitutional supremacy, every executive order or the decisions of any constitutional functionary must be in consonance with the Constitution, and the body to adjudicate that is the judiciary. By adopting the way of ‘executive decree’, the government already side-lined the role of Parliament to have a check upon its work. To make the situation worse, the Supreme Court has not been of a significant help either. Admittedly, the restricted resources and limited framework stops the Court to monitor the policies of the government, but here the Court has given up its fundamental role of ‘sentinel on the qui vive’, and on several occasions it has only tried to maintain the status quo. Here, I shall discuss two exhibits to make my claim.
Lord Atkin, in his dissenting opinion of Liversidge v. Anderson, while demolishing the uncontrolled power enjoyed by the executive at the behest of deliberate vague and strained words used in legislation and orders, went on to recite the Humpty Dumpty story:
“… ‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be the master, that’s all.’ After all this long discussion the question is whether the words ‘If a man has’ can mean ‘If a man thinks he has’. I have an opinion that they cannot and the case should be decided accordingly.”
Today when the extraordinary power rests in the hand of government by employing the ‘Rule by Executive Order’, it is a high probability that the government will canvass the Humpty Dumpty interpretation of its orders – allowing themselves to stipulate the definition of words what they would like them to mean. Of late, the case of Aarogya Setu app has been yet another replication of Humpty Dumpty story like that of the Aadhaar – in both cases, the only authority to decide the meaning of terms’ voluntary’ and ‘mandatory’ has been the Humpty Dumpty. This piece, however, does not endeavour to go into the technical aspects of data privacy concerns since it has already been discussed extensively (see here). Unfortunately, Humpty Dumpty is perpetual; Lord Atkin ain’t.
The other issue as a consequence of the lockdown has been of the migrants’ exodus in search of food, shelter, and wages. The response of the Supreme Court to it can be best understood by the courtroom exchange, taken place during a PIL hearing. The CJI remarked, “If they are being provided meals, then why do they need money?” in a plea for payment of wages to labourers.
Now, if we proceed on to examine the oft-quoted remark of Justice Beg, made during the Emergency that “the care and concern bestowed by the State … is almost maternal” with the remark that of CJI Bobde “How can you say the government is not doing anything when you have not seen the status report of the government?”, one will find the striking similarity – that of a Supreme Court’ ire (If I say, I mean it).
Navroz Seervai, therefore, was correct when he wrote: “the ghost of the [ADM Jabalpur or Habeas Corpus] … [still] seems to stalk the land, despite being ‘buried ten fathoms deep’”.
The good news, of course, is that it can be course-corrected. There have been many aborted attempts to sabotage the institutions and fundamental rights. A lesson, therefore, to learn from the Emergency is this: When one fights against the government, he has to be lucky only once; the government, on the other hand, has to be lucky every time. So hang in, hang in, hang in ….. you never know when the tide turns.
The author is a law student and legal writer at Narsee Monjee Institute of Management Studies School of Law, Mumbai. You can find him on Twitter.
Photo Credits: Bert Hardy/Picture Post/Hulton Archive