SC Will Always Have To Reign Supreme

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Basit Amin Makhdoomi

THE principles of Natural Justice are a precious sacrament that has been adorned since ages by all the democratic and progressive nations of the world. The term Principle of Natural Justice (PNJ), derived from the expression “Jus Natural” of the Roman Law which though does not have force of law as they may or may not form part of statute but they are necessarily to be followed.

The adherence to principle of natural justice as recognised by all civilised states is of supreme importance when a judicial, quasi-judicial or an administrative body embarks on determining disputes between the parties, or any administrative action involving civil consequences is an issue. These principles provide minimum protection of the rights of the individual against the arbitrary procedure that may be adopted while adjudicating upon matters affecting civil rights. Natural Justice recognises two principles of natural justice..

Nemo Judex in causa sua (No man shall be a judge in his own cause).

Audi Alteram partem (hear the other side).

Nemo Judex in Causa Sua, a Latin maxim is attributed to the great seventeenth century jurist Sir Edward Coke, an English barrister, judge, and politician who is considered to be the greatest jurist of all times. This principle of impartiality roughly translated into English means nobody shall be a judge in his own cause or in a cause in which he is interested. Popularly known as the Doctrine of Bias, the principle prescribes that the authority sitting in judgment should be impartial and act without bias and this in turn instils confidence in the system as justice should not merely be done but seen to be done.

This essential pillar of justice, sacrosanct in all civilised societies seems to have been ignored when the Hon’ble Apex Court directed  for constitution of  a Special Committee to be headed by Secretary Ministry of Home Affairs and comptising of Secretary of Ministry of Communications and the Chief Secretary of Jammu & Kashmir to look into the prevailing circumstances and determine the necessity of the continuation of the restrictions in Union Territory of Jammu and Kashmir. The top court directions came on pleas filed by Foundation for Media Professionals, Soayib Qureshi and Private Schools Association of Jammu and Kashmir seeking restoration of 4G in the Union Territory on grounds such as right to access doctors is an inherent under Article 21 (Right to Life) of the constitution and it’s deprivation should be judged in view of the coronavirus or COVID-19 pandemic.

Even though the court might have justified its impediments in passing orders on restoring 4G in J&K  keeping in view the need Apex Court expressed to balance the rights of the citizens with national security concerns, but delegating its constitutional responsibilities of adjudication upon issues concerning fundamental rights to a party  which is a stakeholder to the matter appears to be inconsistent with principles of natural justice. It is no rocket science to comprehend the outcome this exercise will unfurl for those who knocked its doors seeking safeguard of their constitutional rights.

Subject Matter Bias

The Apex Court has itself in a catena of petitions upheld that any interest or prejudice will disqualify an adjudicator from hearing the case. When the adjudicator or the judge has general interest in the subject matter in dispute on account of his association with the administration or private body, he will be disqualified on the ground of bias if he has intimately identified himself with the issues in dispute. To disqualify on the ground there must be intimate and direct connection between the adjudicator and the issues in dispute. The rule against bias strikes against those factors which may improperly influence a judge against arriving at a decision in a particular case. This rule is based on the premises that it is against the human psychology to decide a case against his own interest. The basic objective of this rule is to ensure public confidence in the impartiality of the administrative adjudicatory process. A closer view of this matter reveals that recent consecutive orders of extension of 4G Internet bans in J&K were issued by Principal Secretary Home  and since J&K being a Union Territory the governance apparatus directly reports to the Ministry of Home Affairs through its Home Secretary. Keeping all this in hindsight our Hon’ble Apex Court in its wisdom directs for constitution of a committee, headed by whom? Our Home Secretary, To do what? Review its own orders… this all generates ample force to push these orders to become per incuriam in  nature.

Protector of Rights

The constitution of India is a magnanimous and sacrosanct document which has bestowed upon us certain rights which are extremely fundamental to Human Nature. These Fundamental rights are considered essential for intellectual, moral and spiritual development of individuals. This inalienable nature of these Fundamental rights made it imperative for the constitution makers to consign their protection to an apex level institution, and no other institution than our Supreme court could have undertaken this responsibility. Chief Justice Harilal Kania had said at the inauguration of the Supreme Court that the court must be “quite untouchable by the legislature or the executive authority in the performance of its duties”.

Article 32 entitles people to directly approach the highest court for the enforcement of these rights. B.R. Ambedkar called this article the very soul of the constitution. Chief Justice Patanjali Sastri observed in V.G. Row (1951) that the Supreme Court has been assigned the role of a sentinel on the ‘qui vive’. It is both the first court as well as the court of last resort for the protection of rights. When a litigant approaches this protector, deep inside he has a firm belief that the forefathers of his destiny who entrusted this institution with enormous powers will stand up for him and resurrect his rights and liberties trampled by the rich and the powerful. On the contrary if he witnesses his protector shying away from his basic duties, dejection dooms his idea of a democratic India his forefathers envisioned for him.

Uphold Our Liberties

The apex courts in foreign lands have set a very high bar for us to emulate when it comes to championing the rights of its citizens. In UK, its Supreme Court stood against its executive when PM Boris Johnson arbitrarily announced suspension of UK Parliament for five weeks at the height of the Brexit crisis. The 11-judge panel of the UK Supreme Court unanimously then declared, “The decision to advise the Queen to discontinue parliament was unlawful because it had the effect of frustrating or preventing the ability of parliament to carry out its constitutional functions without reasonable justification. A similar thing was noticed when 4 Judges dissented when US Supreme Court narrowly in 5-to-4 vote upheld President Trump’s ban on travel from several predominantly Muslim countries. These incidents are a reminder to the bulwark of our rights to stand up for us despite all kinds of pressure it keeps complaining about.

The diversity of this country is going through a very tough time when certain segments of our society are feeling vulnerable because of the shifting dynamics of the political issues, thereby having a huge bearing on the psychology of the large electorate of this country. Hate is being spewed on prime time television debates and extremism is being decorated with jingoism and machoism. With all this toxicity in our surrounding environment upon whom can a vulnerable citizen of this country pin his or her hopes, with a warm assurance that it will stand up for the citizen and his or her sacrosanct fundamental rights.

Author practices law at the J&K High Court. He can be reached at: Makhdoomi13@gmail.com

Apparent delay in hearing contentious issues like Article 370, Citizenship Amendment Act undermines the paramountcy that this institution is bestowed with. The recent nomination of former CJI Ranjan Gogoi to the Rajya Sabha within four months of his superannuation from the Supreme Court has further eroded the confidence of the common man.

Montesquieu, the great French judge and political philosopher in his theory of separation of powers, prescribes that the three pillars of democracy ie executive, legislative & the judiciary should always maintain independence in their respective zones albeit with frequent checks and balances. He warned if all the three legislative, executive and judicial powers are combined and given to one person or one organ, the concentration of power becomes so big that it virtually ends all liberty and establishes despotism of that person or organ. We hope the protector of our constitution will stand upto its responsibilities and uphold the trust that forefathers of this nation reposed in it for  keeping alive the democratic ideals of this great nation.

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