M R Shamshad

It is duty of the constitutional courts to make appropriate observations about inappropriate functioning of the state and its administration.

The Supreme Court order awarding compensation and rehabilitation to Bilkis Bano is certainly a step forward in strengthening the faith of the common citizen in the judicial process while fighting the failure of the state in ensuring protection of their guaranteed rights. If we talk in legal jargon, it has strengthened the concept of the constitutional tort against the state as an entity. The Court has discharged its function of redressing the grievance of a citizen of India. However while passing the order, the Court also made an oral observation to tell the State of Gujarat that it should “feel lucky” as the Court was not observing anything against the government in that order. I feel this observation is not appropriate, given the facts of the case. It is duty of the constitutional courts to make appropriate observations about inappropriate functioning of the state and its administration.

The background of this case was that the concept neutrality of state action and inaction was completely absent and biased action and inaction had reached a level that is unparalleled after India became a constitutional democracy. For successful working of democracy, it is essential that the governments behave on secular principles by treating its citizens equally.

Today we witness a serious distrust of the citizen qua fixing of accountability in functioning of the executives and other organs of state. We have enough laws in place to ensure protection of a citizen from illegal action of state organs, but accountability of the state’s inaction has now reached the lowest. For that we need to talk more about accountability of the state’s action and in-action. Every citizen, whether aggrieved or not, needs to question this gradually developed culture of non-accountability of the state organs. This will strengthen the functioning of democracy and this questing of citizens cannot be done without the support of the institutions created under the Constitution itself.

The courts are expected to ensure redress of grievances of citizens against the state and also to see that such violations are minimised in future. How will that happen in the context of Rule of Law? This will happen when the redress of grievance is addressed at least at two levels in the same judgment of the court. One being specific to the grievance of the citizen with consequential action and another by reminding the state about its failure to protect the right of its citizen.

These are few occasions when the Supreme Court has realised that it was necessary to make appropriate observation on the functioning of the government(s). The Best Bakery case was one of the cases relating to 2002 Gujarat riots. When that case reached the Supreme Court in 2004, it said: “The modern-day ‘Neros’ were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected. Law and justice become flies in the hands of these ‘wanton boys’. When fences start to swallow the crops, no scope will be left for survival of law and order or truth and justice. Public order, as well as public interest, become martyrs and monuments.”

In an another case of this series, while convicting the accused, the trial court stated that the incident of riots “was a black chapter in the history of the Indian Constitution”.

In 2013, in the cases arising out of communal riots of Muzaffarnagar, at the stage when the riots had happened and the state of UP was working on prosecution, the Supreme Court prima facie held “the State government responsible for being negligent at the initial stage in not anticipating the communal violence and for taking necessary steps for its prevention”.

While dealing with the powers of the president of India, Justice K Ramaswamy, in his judgement in S R Bommai in 1994 questioned “whether the President of India can keep fiddling like Emperor Nero while Rome was burning or like Hamlet, Prince of Denmark of Shakespeare keep the pendulum oscillating between ‘to be or not to be’ for the issuance of the proclamation under Article 356 of the Constitution dismissing the state government and dissolving the state legislatures and to bring the administration of the state under his rule”.

Today, when it comes to the enforcement of legal rights of the poor, victims of oppression in the hands of the state functionaries, most of the grievances remain without meaningful resolution despite strong constitutional protection. Very few of them reach its logical end. These are occasions when the highest court would remind the functionaries of their role. This will certainly have some deterrent effect in the functioning of the administration in future. Hence, whenever the grievance of a citizen is found justified against the mighty administration, the court must speak on their functioning.

Not speaking on the wrongful behaviour of the organs of State in constitutional democracy has its own consequences. Apart from discontentment amongst the aggrieved citizens in the functioning of the state’s organs, the functionaries shall lead towards authoritarianism or dictatorial regime of elected representatives.

In this context B R Ambedkar’s warning given to the Constituent Assembly in November, 1949 at the time of adoption of Constitution of India becomes relevant to quote. “There is a danger of democracy giving its place to dictatorship. It is quite possible for this new born democracy to retain its form but give place to dictatorship in fact,” he said.

This article first appeared in the print edition of the Indian Express on April 27th, 2019, under the title ‘Your lordships must speak’. 

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