Context

As 2021 draws to a close, a look at the Supreme Court of India’s docket reveals a host of highly significant constitutional cases that were long-pending when the year began, and are now simply a year older without any sign of resolution around the corner.

How delay in judicial process matters differently for the State and individual?

• While the violation of rights — whether through executive or legislative action — is relatively costless for the state, it is the individual, or individuals, who pay the price.
• Making the Constitution effective: Consequently, a Constitution is entirely ineffective if a rights-violating status quo is allowed to exist and perpetuate for months, or even years, before it is finally resolved.
• This point, of course, is not limited to the violation of rights, but extends to all significant constitutional questions that arise in the course of controversial state action.
• Missing the accountability: Issues around the federal structure, elections, and many others, all involve questions of power and accountability, and the longer that courts take to resolve such cases, the more we move from a realm of accountability to a realm of impunity.
• The longer such cases are left hanging without a decision, the greater the damage that is inflicted upon our constitutional democracy’s commitment to the rule of law.

Significant cases that are unresolved

[a] Challenge to the dilution of Article 370

• There is the constitutional challenge to the Presidential Orders of August 5, 2019, that effectively diluted Article 370 of the Indian Constitution, and bifurcated the State of Jammu and Kashmir into two Union Territories, controlled by the Centre.
• It raises the question of whether the Centre can take advantage of an Article 356 situation in a State — a time when no elected government and Assembly is in existence — to make permanent and irreversible alterations in the very structure of the State itself.
•  Implications for federal structure: The answer will have important ramifications not just for Jammu and Kashmir but for the entire federal structure:
• India has a long history of the abuse of Article 356 to “get rid of” inconvenient State governments, and a further expansion of the power already enjoyed by the Centre will skew an already tilted federal scheme even further.
• Power of the Parliament to alter convert State into UT: The case also raises the question of whether, under the Constitution, the Union Legislature has the authority not simply to alter State boundaries (a power granted to it by Article 3 of the Constitution), but degrade a State into a Union Territory.
• If it turned out that the Union Legislature does have this power, it would essentially mean that India’s federal structure is entirely at the mercy of Parliament.

[2] Constitutional challenge to the electoral bond scheme

• Opaque and structurally biased: The electoral bonds scheme authorises limitless, anonymous corporate donations to political parties, making election funding both entirely opaque to the people, as well as being structurally biased towards the party that is in power at the Centre.
• Impact on integrity and right of the citizens to informed vote: In numerous central and State election cycles in the last four years, thousands of crores of rupees have been spent in anonymous political donations, thus impacting not only the integrity of the election process but also the constitutional right of citizens to an informed vote.
• However, other than two interim orders, the Supreme Court has refused to accord a full hearing to the constitutional challenge.

[3] Other significant cases

• Statutory basis of the CBI: As far back as 2013, the Gauhati High Court held that the Central Bureau of Investigation (CBI) was not established under any statutory authority.
• This verdict was immediately stayed when it was appealed to the Supreme Court, but in the intervening years, it has never been heard.
• Challenge to the CAA: More recently, constitutional challenges to the Citizenship (Amendment) Act (CAA), filed in the immediate aftermath of the legislation’s enactment, remain unheard.
• Challenge to the UAPA: The challenges to the much-criticised Section 43(D)(5) of the Unlawful Activities (Prevention) Act, which makes the grant of bail effectively impossible, and is responsible for the years-long incarceration of several people.
• The challenge to Section 43(D)(5) is perhaps the case that most directly affects civil rights, as the section continues to be applied on a regular basis.

Implications of the delay

• Favouring one party: The Supreme Court’s inaction is not neutral, but rather, favours the beneficiaries of the status quo.
• In other words, by not deciding, the Court is in effect deciding — in favour of one party — but without a reasoned judgment that justifies its stance.
• Impact on accountability: Judicial evasion of this kind is also damaging for the accountability of the judiciary itself.
• The Court’s inaction plays as significant a role on the ground as does its action, there is no judgment — and no reasoning — that the public can engage with.
• Impact on the rule of law: For obvious reasons, this too has a serious impact on the rule of law.

Consider the question “What are the implications of the delay in deciding the constitutionally significant cases? Suggest the way forward.”

Conclusion

The current CJI has been on record stressing the importance of the rule of law and the independence of the judiciary. One way of demonstrating that in action might be to hear — and decide — the important constitutional cases pending before the Court.

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