Indian Judiciary is viewed with very high regard by nations around the globe. However, of recent the home of ‘Judicial Activism’ has succumbed to what we call ‘Judicial Evasion’. With the recent 4G Internet Order in the case of Foundation for Media Professionals v. Union Territory of Jammu Kashmir and Anr.[i]we continue to witness the Apex Court’s ‘will see later’ approach. The judgment directed for the constitution of a special committee consisting of the Home Secretary and Secretary, Communications (Central Government), and the Chief Secretary of the UT of Jammu & Kashmir. It further delegated the powers to such committee by its lines that “The Special Committee is directed to examine the contentions of, and the material placed herein by, the Petitioners as well as the Respondents. The aforesaid Committee must also examine the appropriateness of the alternatives suggested by the Petitioners”.[ii] This delegation of powers has raised concerns among people, who see it as against the principle of natural justice, owing to the fact that Governmental Departments whose conducts were in question have for themselves decide the validity of their acts. This article attempts to understand the notion behind such delegation and through precedents or principles tries to analyse the judgment of the apex court.
The 4G Internet Order: The Major Concerns
The writ petition that was filed contended that the restrictions being imposed on the residents of UT of J&K during this period of national lockdown has deprived them of enjoying their right to health, right to education, right to business and right to freedom of speech and expression[iii]. Thus, being an issue of Fundamental Right infringement, the petitioner moved to the Supreme Court Under Article 32 [iv] of the Indian Constitution, which is also known as the Right to Constitutional Remedies and is considered as the heart and soul of the Indian Constitution.[v] The judgment directed the constitution of a committee that was empowered to decide on the validity of restrictions and “appropriateness of the alternatives”. The situation is very perplexing because the very existence of the fundamental right to judicial remedies, makes and duty bounds Supreme Court of India to consider exercising its jurisdiction under Article 32, however, this delegation of power to a special committee formed out of members, who are also the respondents to the writ in question, still stays questionable.
The fact that it was a petition that involved the question of a fundamental right, the Supreme Court was to itself consider the relevant materials and then adjudicate – either for or against –the validity of the challenged measures in the writ petition. While doing so, the court could have also demarcated executive assessments in matters of national security and set the standards for future cases of judicial review in related matters. Had the court given a judgment, it would have been far more transparent and easy to analyse the court’s reasoning in this regard. However, by merely ‘deferring’ from delivering a decision the court couldn’t be said to have ‘abnegated’ the matter, but by effectively ceding its jurisdiction to decide on issues of constitutional law, to a committee comprising of members of the executive and this tenor of order proves that the apex court did resort to ‘abnegating the matter’. In the case of State of West Bengal v. Committee for the Protection of Democratic Rights,[vi]the apex court has held that “constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226[vii] of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the constitutional courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution…” However, the apex court, with all due respect, has failed to take its own words into consideration while passing this order.
The Deference of Apex Court and the Defence of Zamora
Something very remarkable with the order was that the Supreme Court refused to exercise the jurisdiction under Article 32 due to “compelling circumstances of cross-border terrorism”[viii]. So does it mean that article 32 which is not only a right to some ‘remedy’ but rather right to a ‘judicial remedy’ bears no significance whenever cases of “compelling circumstances of cross-border terrorism crop up”? The fact that provisions under Article 32 cannot be suspended “except as otherwise provided for by this Constitution”, the very refusal to exercise jurisdiction raises many questions. To strengthen its case, Attorney General placed before the court the advice of the Privy Council in The Zamora Case,[ix] where it was stated that: “Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a Court of law or otherwise discussed in public.”
The fact that SC while delivering this judgment not just a case of deference to a factual determination of executive, but all it replied was on a note with allegedly no affidavit or supporting materials, which stated that “militancy has significantly increased in the recent times…”[x] and elaborated on some instances of encounters and attacks in the Kashmir valley during April and May 2020. But it’s also pertinent to note that the internet has been suspended from a time far before these incidents,[xi] and hence these incidents in no way supported the reasoning behind the suspension of the internet in the valley. However, the Supreme Court should have also pondered that orders must be defended on the basis of the reasons recorded at the time the orders are passed and not on the basis of subsequent reasoning because orders are not antiques which gain value as they age. What’s even more noteworthy is the fact that in the same case of The Zamora it was also pointed out that “If the Court is to decide judicially… it cannot, even in doubtful cases, take its directions from the Crown, which is a party to the proceedings… It must itself determine what the law is according to the best of its ability, and its view, with whatever hesitation it be arrived at, must prevail over any executive order…”Now, owing to the fact that the Union of India was indeed a party here, the note should not have been entertained in the very first place.Other than The Zamora and the case of Anuradha Bhasin[xii], no other authority was provided to add to the claim that “national security” is a valid ground for the complete claim of violation of fundamental rights.
Conclusion: Where are we heading towards?
The Supreme Court’s specified in the Order that the submissions of the Petitioner merited consideration “in normal circumstances”, but Supreme Court ultimately held that it cannot consider it owing to the view of “compelling circumstances of cross-border terrorism”, is something disturbing. This order coupled with the fact that it is being said in a country which is believed to be a country of judicial activism is something that forces us to try and understand the real scenario behind the order.Though the Supreme Court is seen as a temple of justice, yet this order is something that has not been well received by many. It will indeed be too much to present a counter view to it, but we can just say that the order could have been better had the SC take into consideration certain points we made. It will be an impatient call to make as to what shall be the final decision of the committee, and hence we should have patience and belief in the judicial system of our nation. We can still hope that this order ultimately stays ‘only’ Evasion by Adjournment so that a future Bench can re-consider after the Special Committee decision and under no circumstance should mark the cementing of a culture of Evasion by Abnegation, for that would be highly detrimental to the democratic spirit of our country.
[i]Writ Petition (Civil) (D. No. 10817 OF 2020), Available at https://main.sci.gov.in/supremecourt/2020/10817/10817_2020_33_1502_22029_Judgement_11-May-2020.pdf.
[ii]Paragraph 24, Writ Petition (Civil) (D. No. 10817 OF 2020).
[iii]BHRRC, Internet Shutdowns Harm Access to Information, Freedom of Expression & Economic Growth, Business and Human Rights Resource Centre ( 20th May 12:42 AM), https://www.business-humanrights.org/en/internet-shutdowns-harm-access-to-information-freedom-of-expression-economic-growth.
[iv] The Constitution of India, 1950, Art. 32.
[v]NirmalenduBikashRakshit. “Right to Constitutional Remedy: Significance of Article 32.” Economic and Political Weekly 34, no. 34/35 (1999): 2379-381. Accessed May 19, 2020. www.jstor.org/stable/4408327.
[vi]CIVIL APPEAL NOS.6249-6250 0F 2001.
[vii] The Constitution of India, 1950, Art. 226.
[viii]Paragraph 19, Writ Petition (Civil) (D. No. 10817 OF 2020).
[ix]  2 A.C. 7.
[x]Paragraph 13, Writ Petition (Civil) (D. No. 10817 OF 2020).
[xi]VinduGoel, Karan Deep Singh & Sameer Yasir, India Shut Down Kashmir’s Internet Access. Now, ‘We Cannot Do Anything.’, The New York Times ( 20th May 12:42 AM) https://www.nytimes.com/2019/08/14/technology/india-kashmir-internet.html.
[xii]WRIT PETITION (CIVIL) NO. 1031 OF 2019.
ABOUT THE AUTHOR(S)
Raj Shekhar is a law student at National University of Study and Research in Law, Ranchi. His areas of interest include Indian Constitutional Law, Corporate Law, and International Human Rights Law.
Astutya Prakhar is a first year law student at National University of Study and Research in Law, Ranchi. He has a keen interest in making career as a Corporate Lawyer.
In content picture credits: livelaw.in