Litigants have approached the Supreme Court of India with manifold requests, solemn and bizarre, that ranges from seeking the court’s intervention to guarantee basic rights for the prisoners to asking the government of India to declare parts of Pakistan as India. These litigations are filed seeking the court to invoke its authority under article 32 of the Constitution that grants the public, authority to approach the court to seek redress for violations of fundamental rights. While this jurisdiction of the court has been meaningfully used to a great extent, it has also been subjected to wide misuse, by individuals as well as by the court itself.
In a petition filed by a lawyer, Mr. Kamalesh Vaswani, requesting the court to direct the government to prohibit pornographic websites, the court has issued notice to the government. In his self-declared war against pornography, Vaswani has alleged that pornography is the root cause of all crimes, most importantly sexual offenses committed against women and children. In yet another petition before the court, another petitioner has requested the court to invoke its jurisdiction to ensure safety of submarines. The court has issued notice to the government in this case also.
While both these cases are glaring examples to how the court’s jurisdiction and time is misused by self-centred and malicious litigants, they also speak to how the court values its time, by bothering to accept such cases. The litigation against pornography is pretty much an attempt to impose moral policing in a country where places of worship have rock carvings that depict sexual postures, and safety of submarines is an issue that the navy should first address.
Examples of misuse apart, it is a fact that the country’s judiciary has played a commendable job in advancing human rights jurisprudence in India. Yet, if one were to review, whether this enhanced jurisprudential landscape has contributed towards the betterment of human rights in India, the answer has to be pessimistic.
It was jurists like Justice V. R. Krishna Iyyer, who as early as in 1976, initiated the process of expanding the reach of the Indian judiciary, in its capacity to assist ordinary Indians in their pursuit of redress and justice for human rights, in genuinely common-good spirited causes. This, the judiciary has achieved, by interpreting the Constitution, to include within the constitutional remit, rights that were not originally considered ‘justiciable’ in India.
However, if one were to deconstruct the entitlement to these rights, old and new, with adequate redress, and, such redress leading to diminishing of the recurrence in violation of these rights as denominator, the results are appalling.
Despite the landmark judgment of the Supreme Court of India, prisoners continue to get tortured and brutally ill-treated in detention centres. The interpretation of the Constitution by the court, to include the right to food has not contributed in reducing malnutrition and starvation deaths in the country. Neither has the running commentary like directives and interpretations by the court, condemning the practice of custodial torture brought an end to this horrendous practice.
The D. K. Basu case, that led to a substantial amendment of the Criminal Procedure Code, 1973 to prevent pre-trial abuses of detainees by the police and other law-enforcement agencies at the time of arrest, detention and questioning has not led to any visible changes in the status quo. It is in this context the practical premise of the activism of India’s judiciary is to be analysed.
Mere pronouncement of rights, as the court did in cases referred to above, and, on the question of workplace safety of women while deciding the Vishaka case that did not end sexual harassment of women strongly suggests that judicial pronouncements are no panacea to realising human rights. In essence, without the state breathing life into the jurisprudential development, court affirmed rights are of no practical use.
This is where the responsibility of the state calls for multifaceted obligations. That the court had to define and then direct the state to protect a right, on the first place, implies that the state has failed to discharge its primary responsibility of guaranteeing the right in question. Further, to comply with the directives of the court, require the state to set in place a fail-proof implementation mechanism, the failure of which amounts to also demoralising the court.
For instance, post the D.K. Basu judgment, and the amendment to the Criminal Procedure Code, India still lacks a comprehensive framework to deal with custodial violence. The country today does not have a law that criminalises torture. The cumulative result of this is, practices the court directed the state to end, continues unabated. The court on the other hand has failed to take any action against the state’s failure to implement its directives. This has led to the general public doubting the judiciary’s capacity to walk its talk.
Protection and promotion of human rights, depends to a large degree upon the state’s willingness to deal upfront with possible violations. The front line of this defence and offense where it is warranted are the law-enforcement agencies of the state. This is where, in countries like India there is a huge vacuum. This vacuum is not created by the absence of these agencies, but by them shifting their position of being the primary violator of human rights, than being its guardian.
Unfortunately, the Indian state has let the situation continue and has no policy to change it. Here, the courts have proved themselves incapable of being any use, since state policies that are required to refine the functioning of law enforcement agencies are to be drawn-up by the state. It is for the state to provide resources and refinement to its agencies and thereby equip them to be able to discharge their duties as expected. It is this exercise, of breathing life into the jurisprudence laid out by the court, which is visibly lacking in India.
# # #
For further information: In Hong Kong, Bijo Francis, india@ahrc.asia
