Singhal gives the following telling instances to prove his thesis that the Supreme Court of India in the recent past has functioned in a manner clearly showing that it is committed not to the cardinal principle of Rule of Law but the carnal principle of Rule of Men.
A. The Supreme Court ordered the shifting of two Muslim graves from Mohalla Doshipura of Varanasi in UP in October 1986. When that order was not complied with, the Supreme Court’s attention was drawn to that lapse but no contempt notice was issued by the Supreme Court to enforce its supreme authority. Instead, in a tepid if not stupid fashion, the Supreme Court simply reminded the State of UP about the legal requirement of its compliance. The State of UP treated this request of the Supreme Court for compliance with contempt.
Yet, surprisingly enough , the Supreme Court gave a supreme death blow to the due process of law rooted in equity and natural justice by readily granting a request made by the government of Uttar Pradesh for the grant of 10 years’ time to effect compliance of the Supreme Court order. Singhal points out with mild sarcasm that till date the orders of the Supreme Court in the case in question have not been complied with by the government of UP. When the Supreme Court of India voluntarily chooses to treat its own order with supreme contempt, the only option that remains open to a civilised people is to resort to a revolution as they did in France in 1789 and in Russia in 1917. That is why Harold Laski rightly observed that ‘a Constitution that cannot be constitutionally enforced is an open invitation to an armed revolution’.
The point to be noted is that at no stage the Supreme Court drew up any contempt proceedings in this case. On the other hand, the court with tremendous pseudo-secular elan extracted a written assurance from the then Chief Minister of UP Kalyan Singh that he will protect the Babri Masjid structure. However, when the Babri Masjid was destroyed, the court lost no time in punishing him for contempt within days of the incident. Contempt committed by ‘Special Class Citizens’ is not felt or viewed as ‘Contempt’ by the court, but contempt committed by a ‘Second Class Citizen’ (a Hindu to be precise) is punished promptly with fervour. So much for the Supreme Court’s interpretation of the Rule of Law and the Principle of Equality Before the Law.
B. Singhal then cites a ‘less emotive example’ which can stand the strictest impartial scrutiny in any Court of Law in any part of the world excepting our ‘judicially hoodwinked’ nation. The UP government acquired 2.77 acres of land (excluding the area under dispute) to enable Kar Sewa on the spot. Of this, 2.04 acres belonged to the Vishwa Hindu Parishad (VHP). The acquisition was challenged by a writ filed by Muslims in the UP High Court, which issued an injunction order but permitted temporary construction.
Not one or two but three contempt proceedings were filed by the Muslims against this High Court order in the Supreme Court which transferred all the three petitions to the High Court in UP on 15 November 1991 for dealing along with the then pending writ. Exasperated by the inordinate delay in finalizing the writ relating to a simple land acquisition case, the VHP gave a call for Kar Sewa on 9 July, 1992. In between two more contempt applications were filed by the Muslims in the Supreme Court and they were admitted. However, from 10 July 1992, the court was beleaguered by innumerable PIL petitions. Most unprecedentedly, affidavits on plain papers, miscellaneous applications and even newspapers were being passed on across the table by the Muslim litigants and the court accepted them with matching speed and alacrity. The thrust of all these hastily drawn up haphazard documents was that the government of UP was committing gross contempt. The government in turn was continuously being asked by the Supreme Court to file their counter affidavits at a frenetic pace.
Historically, the most glorious aspect of this orchestrated pseudo-secular drama lay in the fact that applications were being received on a war- footing at the residence of Supreme Court judges, proceedings were being conducted beyond office hours and all these petitions were enjoying the privilege of day to day hearing in the apex court.
In stark contrast, the counter affidavits in this case were being demanded from the government of UP on an hourly basis often times, in a time-frame of less than 24 hours.
The tremendous practical disadvantage and difficulty caused and the obvious prejudice shown by the apex court on this issue towards the UP counsel, compelled the counsel to draw the attention of the court about the non-availability of adequate opportunity for submitting the replies of that State government and prayed that he be given reasonable opportunity. The Supreme Court thereupon found itself compelled to admit this harsh treatment and ordered on 5 August, 1992 that ‘We think that the prayer is reasonable and the respondent should have such an opportunity’.
To quote Singhal’s sharp words in this context: ‘This example shows the exceptional and unprecedented consideration given to Muslims as special class Citizens by the Supreme Court. That, ultimately all the contempt petitions and applications were found to be without merit and were dismissed only heightens the acuteness of the humiliation of the second class Hindu’.
The Constitution is, of course, a legal document, but a legal document of a fundamentally different order from an insurance policy or a lease of forest land. Any responsible and patriotic judge of the Supreme Court should view the Constitution primarily not just as a text for sterile dialectic, but as a means of ordering the life of a progressive people over time. While, its roots are in the past, it has to be projected for the unknown and unknowable future. The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions of our nation. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by judiciously considering their origin and the line of their growth.
We should not speak of the Supreme Court of India or any other Court of Law as though it were an abstraction. No doubt the COURT is an institution, but we should not overlook the fact that individuals, with all their diversities of endowment, experience and outlook determine its actions. The history of the Supreme Court of India is not the history of an abstraction, but the analysis of individuals acting as a COURT who make decisions and lay down doctrines, and of other individuals, their successors, who refine, modify, and sometimes even overrule the decisions of their predecessors, reinterpreting and transmuting their doctrines. In short, in LAW also, judges as men make a difference. In this context it is very necessary from the point of view of our nation’s survival that all the citizens of India should become continuously aware of the vital role of the Supreme Court in the dynamic process of society. All our so called great lawyers, including Advocate Generals, Solicitor Generals, Attorney Generals and Bar at Laws, their ‘Royally’ legal majesties and graciousness, their legal serenities and highnesses and the like, with rare and spectacular exceptions, have totally failed to lay bare the fact that the Law of the Supreme Court, for good or evil, is enmeshed in our country’s history after independence. What is even more tragic is that our so called distinguished historians, more often pandering to the unscrupulous politicians of the moment, have completely missed the fact that our history is enmeshed in the Law of the Supreme Court. The vital share of the Supreme Court in the continuous interplay of our country’s political and economic forces has largely escaped their attention. Not unnaturally, the Supreme Court and the role of the judiciary have been outside the permanent focus of the eyes of most of our so-called great historians. To quote the brilliant words of Justice Felix Frankfurter (1882-1965) in this context: ‘The momentum of the influence of any Court of Law is achieved undramatically and imperceptibly, like the gradual growth of a coral reef, as the cumulative product of hundreds of cases, individually unexciting and seemingly even unimportant, but in their total effect powerfully telling in the pulls and pressures of society in the roaring loom of time’.
(To be contd...)
(The writer is a retired IAS officer)
e-mail the writer at vsundaram@newstodaynet.com
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