Daily The Hindu Editorials Notes – Mains Sure Shot (12/09/2019) for UPSC/IAS

GS-2 Mains

Question – Comment on the role of the judiciary in the Indian democracy and also its role as a guardian of fundamental rights. Are we facing a habeas corpus in 2019?

Context – The silence of the judiciary and the Kashmir lockdown.

The importance of the judiciary in a democracy:

• There are three pillars of a democracy – the executive, the legislature and the judiciary.
• For a democracy to function independently it is imperative that all its organs functions smoothly and in coordination with one another.
• The Indian constitution provides for the complete independence of the judiciary from any executive or legislative influence this is mainly based on the premise that in case of any executive or legislative excesses, the people have a resort. Their rights cannot be taken away at will.
• It is a kind of a system of checks and balances.

The role of the judiciary as a guardian of fundamental rights:

• So as we saw the judiciary is meant to check the excesses of the executive so that it cannot use its power as a means to curb dissent.
• Power can be used as a means to curb dissent by depriving people of the basic right to life and liberty and freedom.
• A look back in time- it was in 1976 that the Supreme Court upheld the suspension of the  fundamental rights to life and liberty during Indira Gandhi’s Emergency. 
• The court’s verdict — popularly known as the habeas corpus judgment — was based upon the principle of ‘executive supremacy’. This principle is based on the premise that in ‘times of peril’, civil liberties must be subordinated to the interests of the state.
• But who decides what qualifies as ‘times of peril’? It is the executive i.e. the government. So this leaves a complete scope of powers to be used by the government without being worried about the arbitration of the rights of individuals.
•  The Supreme Court had acted on the ‘presumption that powers [of preventive detention] are not being abused’.
• But this presumption was proved false and the  hollowness of the Supreme Court’s position was soon revealed. After the end of the Emergency, the government’s excesses — committed under the cover of the habeas corpus judgment — came to light. These included the torture and murder of dissidents. The episode was a stark reminder of one basic principle: absolute power corrupts absolutely.
• Our republican Constitution, therefore, gave this power to the judiciary, where even the government must always be held accountable for its actions. When these actions infringe fundamental rights, accountability must be sought in a court of law.
• This shows the role of the judiciary as the guardian of fundamental rights.
• For example, citing the example of the habeas corpus judgment of 1976, the Supreme Court condemned it as the darkest hour in the Supreme Court’s history. In 2017, the court formally overruled it, stating that it should be ‘buried ten fathom deep with no chance of resurrection’. 
• In its place, the court erected the principle of proportionality: if the state wants to infringe on peoples’ rights in service of a larger goal, then it must demonstrate that the measures it is adopting bear some rational relationship with the goal. More importantly, it must show that rights are being infringed to the minimum possible extent. And the constitutionality of the state’s actions is to be tested by the courts.

Are we facing a similar Habeas Corpus in 2019?

• From August 5, 2019, the State of Jammu and Kashmir (J&K) has been placed under a ‘communications lockdown’. In addition, political leaders along with an unknown number of other individuals have been detained. These moves followed the Centre’s decision to downgrade J&K’s ‘special status’ under Article 370 of the Constitution, and eventually convert it into two separate Union Territories.
• Both moves violate crucial fundamental rights. A communications shutdown violates the freedom of speech and expression because it prevents those outside the State from being in touch with their families, provides cover for civil rights violations that cannot come to light.
• Further detention (political or apolitical) self-evidently violates personal liberty.
• Both of these have been justified by the government stating that it is realistically not possible for the government to cut off communication between the terrorists and their masters on the one hand, but keep the Internet open for other people. Also, political leaders would remain in custody until ‘the environment is created for democracy to function’.
• But it refrained from saying how long it would last.
• The United Nations had called the communication lockdown a form of “collective punishment”, where, under the guise of ‘prevention’, an entire population’s rights were taken away for the actions of a few. Collective punishment is an inherently disproportionate infringement of fundamental rights.
• If the government’s arguments are taken as the official justifications for the lockdown and detentions, then it should be clear that there are some serious doubts about whether the constitutional requirement of proportionality is fulfilled. The principal citing which the SC in 2017 had formally overruled the Habeas Corpus judgement of 1976.
• Though unlike the emergency when through the Habeas Corpus judgement the courts had upheld the validity of the government’s actions, this time the courts have not upheld its actions but the very silence of the courts makes us think is it another Habeas Corpus in 2019? In a different form? 
• Petitions challenging the lockdown have also been repeatedly adjourned (the first time with the court making a remark that the government should be ‘given some time’ — a striking echo of the habeas corpus case).

Conclusion/ What does this indicate?

• By choosing to remain silent the courts have allowed the infringements of civil liberties to continue. And they have done so in a particularly insidious manner: by exempting the government from its constitutional obligation to explain itself, and by exempting themselves from their obligation to hold the government to account.
• This is like upholding executive supremacy at the time at which the judiciary is most needed to defend civil liberties, it has simply vacated the field, absented itself, and chosen to walk away.

Way forward:

• The judiciary must uphold its role as the guardian of fundamental rights and set examples for the future. It is the last resort of the people and it should keep this trust because without trust and checking executive supremacy a democracy cannot function.