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. All these cases involve crucial questions about state power, accountability, and impunity.

• Consequently, the longer they are left hanging without a decision, the greater the damage that is inflicted upon our constitutional democracy’s commitment to the rule of law.

What are some of these cases? 

• 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.
  • The case raises certain fundamental questions about constitutional power and accountability.
    • First, 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.
    • Second, 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 (something that has never been done before August 5, 2019).
• Constitutional challenge to the electoral bonds scheme, that has now crossed four years.
  • 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.
• As far back as 2013, the Gauhati High Court held that the Central Bureau of Investigation (CBI) was not established under any statutory authority.
• constitutional challenges to the Citizenship (Amendment) Act (CAA) remain unheard, as do the challenges to the much-criticised Section 43(D)(5) of the Unlawful Activities (Prevention) Act

Blow to accountability

• 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, and who must then run from pillar to post to vindicate their constitutionally guaranteed rights.
• This is not limited to the violation of rights, but extends to all significant constitutional questions that arise in the course of controversial state action.

  

• 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.
• Consequently, the longer they are left hanging without a decision, the greater the damage that is inflicted upon our constitutional democracy’s commitment to the rule of law.

Way Forward

• During the framing of the Indian Constitution, it was proposed that any petition alleging a breach of fundamental rights by the state ought to be judicially decided within one month. 
• Once a court decides a case, its reasoning — which must, by definition be public — can be publicly scrutinised and, if need be, critiqued.
• In the absence of a decision, however, while 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. For obvious reasons, this too has a serious impact on the rule of law.
• It must be acknowledged that the responsibility for constituting benches and scheduling cases especially cases that are due to be heard by larger Benches rests solely with the Chief Justice of India (CJI). 
• One way of demonstrating that in action might be to hear — and decide — the important constitutional cases pending before the Court.

Conclusion

• 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 (and often, by the time resolution comes, it is too late in the day for it to have any practical significance).

Source: TH

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