Judiciary in Service of the Executive: The Case of the Supreme Court

Judiciary in Service of the Executive: The Case of the Supreme Court

Younis Ahad

The maxim “ubi jus ibi remedium” means that where there is a right, there is a remedy. It is a foundational principle of justice. India’s Constitution contains a full chapter of fundamental rights and the doors of the Supreme Court are open to anyone who is denied any of these rights. Under Article 32 of the Constitution, the Supreme Court has the prerogative to issue writs to enforce the fundamental rights. The Constitution has been fashioned in such a way that it sets an example of freedom and liberty. It is, therefore, sad and unfortunate that over the past few decades the idea of constitutional remedies moving in parallel with fundamental rights has come to wither. The Supreme Court’s history is littered with cases where the violation of rights was established but the remedy was not found. I have come across people who often ask me about the slow working of courts. Recently a Facebook user questioned me on why there are corers of cases pending? There are no answers to these questions; they just stare at the system as a big question mark.
On August 5, 2019, all means of communication were shut down in Jammu & Kashmir in anticipation of law and order problems following an abrupt Constitutional amendment. The communication lockdown was imposed under the Temporary Suspension of Telecom Services Rules which enable the central or state government to suspend telecom services when there is a risk to public safety. The suspension rules indeed provide a mechanism for solitary review of suspension orders. While in the midst of the communication blockade, the matter was ultimately dragged to Supreme Court on January 10. The court in its decision found that the suspension orders were not valid. The court replaced the solitary review with periodic review and directed the government to review the suspension after every seven days. But the court didn’t set aside the order. After the intervention of the court, gradual access to all communication was permitted. Fixed internet line was restored first for essential services and hospitals. Access to social media was first denied but later it was reinstated but the speed was restricted to 2G and so it continues till now.
When COVID 19 forced all of us to stay indoors, all quarters in Kashmir demanded restoration of 4G services, but the government turned a deaf ear. This issue was brought to the SC with the petitioner echoing the public voice of J&K. It was pointed out that the restriction was hindering doctors and general public from accessing information on COVID 19 and students from accessing education material. National security, however, was given more importance by the court. In the case, Foundation for Media Professionals vs Union Territory of Jammu and Kashmir, the SC observed that it has to ensure national security and human rights can be reasonably balanced against this aim.
The SC on May 11 found the restrictions on 4G disproportionate but did not issue any order for restoration. Instead, it set up a committee consisting of national and state level bureaucrats to examine the content of the petitioners. The court also did not specify the time in which the committee had to report back to the court. It is sad to say that the court has handed sacrosanct power to the executive committee. By doing so it has abdicated its obligation as a separate organ of the state. Such free hand to executive cliques is a great concern. The court should have appointed independent judicial officers in this committee. The court has also violated the natural principle of justice, that no one can be a judge in his own case.
It is not a question of 4G speed but of reasonable access to internet. The top court’s attitude in this case should concern all legal luminaries. Every legal expert must denounce it in strong words for the sake of independence of the judiciary. Every person associated with the law profession must come forward as this is the time to restore the credibility of the judiciary in the eyes of the common masses. We have to make them believe that the judiciary is independent in letter and in spirit.

The writer is a law student. [email protected]

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