The court has always held against liberty
Kannabiran’s comment to Justice Sachar's analysis of the ADC Jabalpur case
-- By K. G Kannabiran
Dear Rajindar, Thanks for the advance copy of your article, A Supreme Mistake. I would like to ask you to permit me to make a few points:
Our Supreme Court did not suddenly develop this attitude displayed during the 1975 Emergency. Our Court has always been colonial one, which treated the people as subjects, and not citizens even after the new Constitution came into force. Supreme Court, barring Fazl Ali and Vivian Bose, always held that rights are granted to us by the Constitution. From A K Gopalan onwards we are repeatedly told rights are granted to us by the Constitution. They always talked about personal liberty when property was attacked by legislation. You may take all the cases from A K Gopalan onwards, the Court has always held against liberty. In Makkan Singh in 1964 Gajedragadkar talked of rights as grants and argued that what had been granted can be withdrawn. Only Subba Rao struck a different note.
In Fagu Shah in the Seventies the same trend continued and in ADM Jabalpur they could not take a different line. Even today the same situation continues. After Emergency we had a galaxy of brilliant but hollow judges. They didn't structure a jurisprudence required for understanding and enforcing the Constitution. They were displaying their prowess in judicial craftsmanship. They differed from the previous courts in that they were left oriented. What did they do after Emergency? They were writing about the liberties of persons inside the prisons. In fact they canonised scoundrels from Sunil Batra to Auto Shankar! They expatiated on Social Justice and encouraged Public Interest Litigation. These were all exercises in personal salvation with the exception of Justice Iyer and Chinnappa.
Their response to terrorism is a very middle class reaction and you know more about it than I do. You have been consistently arguing for PUCL by challenging the terrorist laws. Can you go before the court today and argue against globalisation? Can we argue before the Supreme Court that market forces cannot bring about social equilibrium by bringing about economic equilibrium, if that is at all possible? Can we go and argue before the Court that as private enterprise has been liberated from governance, will the private enterprise take over the obligation of the State under some of the provisions contained in Articles 15, 16, 17, 23, and 24? (I hope I got the articles right). Can the court direct them to perform the obligations of the State? How are we to negotiate for the people and their rights in these Courts? PIL is high jacked by the upper classes and upper castes; and is it possible approaching the court and requesting them to break the strike when upper caste students are striking against reservations or for not issuing supportive directions? We are in a worse situation than during the Emergency.
The State by not acting is doing greater harm. It is determined to deal with law and order and public order. There are two committees working on tightening the laws on public order and all the participants, except the one held at Delhi, are clamouring for enforcing Malimuth Recommendations, a committee which consisted of people all of whom knew nothing about criminal law excepting the police officer who is on the Committee. The only duty the State is willing or compelled to undertake is acting as the security guard for the Indian business and multi-nationals.
That is what should worry us thirty years after the Emergency. One has to express satisfaction about one thing concerning the computer and the internet: you can vent your spleen and transmit it. Thank you for sending the piece. I did enjoy reading it.
With affectionate regards, K G Kannabiran, 28.6.2006 .