The Year of Judicial Complacency and Reluctance: What went wrong?

By Varun Ahuja, third-year B.A. L.L.B. student from Vivekananda Institute of Professional Studies, Delhi.

Introduction

In liberal democracies, constitutional courts derive their legitimacy from independent decision making and public trust. While the legislature enacts laws and the executive implements them, citizens often turn towards the judiciary to seek protection for their constitutional rights against the catastrophic outcomes that some of these laws might have. Therefore, the judiciary is often deemed as the ‘least dangerous branch of the government’.[i]

Today, the judiciary as a whole and the Supreme Court, in particular, is facing serious challenges in maintaining its legitimacy.[ii]

Anuj Bhuwania, author of ‘Courting the People’, calls this condition an ‘ongoing crisis’. He has highlighted instances where the Supreme Court failed to act on questions of personal liberty or where the court tolerated ‘blatant lying by government lawyers’.[iii]

Pratap Bhanu Mehta calls this phenomenon of whimsical decision making as ‘judicial barbarism’. Mehta argues that the Court is getting increasingly arbitrary in its decisions, and feels ‘secured not by its credibility but by its power of contempt’.[iv]

Adding to the already disintegrating state of the judiciary, the pandemic brought a newer set of challenges.

Simultaneously, several governmental actions signalled towards developing an autocratic pattern in curtailing democratic freedom,[v] made worse by the pandemic.[vi] India, is now grouped[vii] along with countries that have an authoritarian governance system such as Hungary, Poland, and Turkey. Tarunabh Khaitan, the author of ‘A Theory of Discrimination Law’, called this democratic decline as “incremental and systemic” done by undermining or capturing institutions meant to maintain executive accountability.[viii]

This article will look back at the year and try to highlight such instances where the courts have acted arbitrarily. The article will reflect on what seems to be like a trend throughout the year. Wherein the High Court and the subordinate courts outshined the Supreme Court to protect constitutional rights even against the executive fancies

On the one hand, the lower courts and the high court took a definitive stand against the executive. On the other, there were many instances where the Supreme Court allowed the executive to push around the judiciary.

The article is divided into two sections. The first part focuses on instances where several high Courts and subordinate courts stood for fundamental rights and protected individual liberty when compared to the apex court. The second part analyses how the Supreme Court either simply agreed with the executive or made decisions benefiting the executive. In the end, several such decisions suggested that the judiciary favoured the executive and was reluctant in standing up against certain governmental actions.

Leading by Example: High Courts and Subordinate Courts

High courts have known for being resilient against executive attacks especially in dire times like these. For instance, in the emergency-era, in the catastrophic ADM Jabalpur case, at least nine high court judgements were pronounced against the government, upholding fundamental rights of the citizens.

Even during this year, despite the pandemic, the high courts and subordinate courts seemed mostly insulated from the shadow of looming judicial deference to the executive. The following two incidents will help touch upon this assertion in greater detail,

(1) the Allahabad High Court judgement on the ‘name and shame’ campaign led by Uttar Pradesh government against the Citizenship (Amendment) Act 2019 (CAA) protesters;

(2) and the Tablighi Jamaat Case adjudicated by several high courts and subordinate courts across the country.

Countering the ‘Name and Shame’ Campaign

In an absolute brazen act of abuse of power, the Uttar Pradesh (UP) government had decided to put up banners with personal details of persons accused of violence and vandalism during the protest against CAA in December last year. The details included photographs, name and address of persons to be flaunted on roadside hoardings in Lucknow.

The Allahabad High Court took suo moto cognizance[ix] of the incident, raising concerns regarding the fundamental right of privacy of the individuals.

In its response, the UP government questioned the territorial jurisdiction of the Allahabad High Court. It further contended that the persons were already issued a notice for payment of compensation for causing damage to public property and the object of such an action was to ‘deter citizens from participation in illegal activities’.

Relying on the conception of the constitutional right to privacy in K.S. Puttaswamy,[x] the Court held that there was “no law” in existence to confer legality to such actions and thus, directed the banners to be removed.

The Court made scathing observations, it remarked that such an action was a ‘colourable exercise of powers by the executive’. The High Court also observed that there was a “shameless depiction” of injury caused to precious constitutional values.

The State Government appealed this decision in the Supreme Court.[xi] Thereafter, the apex court refused to stay the High Court’s decision and referred the case to a larger bench for consideration. No further hearing has taken place ever since.

However, the government, presumably hurt by the observations of the High Court, promulgated the ordinance, Uttar Pradesh Recovery of Damage to Public Properties Ordinance 2020, to provide a legal mandate to their otherwise illegal actions.

The Vilification of the Tablighi Jamaat Congregation

The Tablighi Jamaat (Society for Spreading Faith), a Sunni Islamic missionary movement, held a congregation at Nizamuddin Delhi.[xii] The congregation, consisting of members from 70 countries, was hosted between March 13 to March 15 this year, before the ‘Janta Curfew’ was announced owing to COVID-19 on March 22.[xiii] Ever since then, the community had been constantly vilified for being the carriers of the virus. The vilifying campaign against the members of the Tablighi Jamaat mushroomed into the dissemination of fake-news targeted at Muslims, accusing them for the increase of COVID-19 cases.[xiv]

As a result, 205 FIRs were lodged against foreign Tablighi Jamaat members by 11 states and 2,765 such foreigners were blacklisted in an attempt to prosecute the members of the congregation.[xv] However, after eight months of litigation faced by the foreigners, at least 1,086 members of the Jamaat have been exonerated in some way by eight local and high court judgements.[xvi]

There were a series of judgements pronounced by various high courts across the country which unequivocally condemned the state action of prosecuting foreign individuals for visiting the Markaz.

On June 12, Justice G.R. Swaminathan of the Madras High Court, discharged 31 foreign visitors who attended the Markaz.[xvii] He stated that Article 21 of the constitution extends to ‘all persons’. The Court also observed,

“Failure to respond to the petitioners’ existential horror would amount to judicial abdication”

It furthered,

None of the petitioners tested positive for Covid-19 and there is absolutely nothing on record to indicate that they had contributed to the spread of the novel coronavirus.

The Aurangabad Bench of the Bombay High Court on August 21, quashed three FIRs against 35 petitioners, 29 of them foreign nationals, for attending the Nizamuddin congregation.[xviii] The judgement observed that once the visa is granted to a person, Articles 20, 21 and 25 of the Constitution are attracted. Although some limitations can be imposed for defence, the person does enjoy the freedoms enshrined under the Articles.

Justice T.V. Nalawade, went as far to suggest, that the malice on part of the state authorities could have been a response to the protest against the CAA, of which most of the persons were Muslim. However, Justice M. G. Sewlikar disagreed with this observation stating that it was out of the scope of the petition. Karnataka High court, using this case as a precedent, quashed FIRs against nine foreign nationals but refused to quash FIRs against seven Indian nationals.[xix]

Most recently, on December 22, the Patna High Court[xx] quashed the entire case against 18 foreigners associated with Tablighi Jamaat. The Court observed that there was not even ‘prima-facie evidence to suggest that these foreign nationals had indulged in the preaching of their religious ideologies’.

Even subordinate courts posited similar independent decisions. The Metropolitan Magistrate (Andheri), Mumbai, acquitted 28 foreign nationals of all charges. The MM made scathing remarks stating,

“There is no iota of evidence with prosecution to show any contravention of order by accused persons beyond all shadow of a doubt.”

Most recently, on December 16, the Chief Metropolitan Magistrate, Saket, Delhi acquitted 36 foreigners observing that it was ‘reasonably possible’ that ‘none of them was present at Markaz during the relevant period’ and therefore, were maliciously prosecuted.

Even though the whole litigation around the incident took more than eight months, the lower courts and high courts have rightly stood up against the vilification of the foreigners to dispense justice. Even after so many FIRs and rounds of litigation, neither the Central and nor the state governments were able to conclusively prove the charges against the congregation.

 The Case of a Flippant Court: Supreme Court and Constitutional Rights

There are plenty of examples where the Supreme Court is seen deferring to the executive. This tilt towards the executive often comes at the cost of individuals’ constitutional rights. In the recent past, the apex court has escaped addressing serious violations to constitutional rights, to do so it has deployed any one of the three strategies:

(a)   it either refuses to list the case for a hearing creating a situation of fait accompli (more often than not benefiting the executive);

(b)  or takes the executive for its word (sometimes even tolerating ‘blatant lies’);

(c)   or passes orders and judgements devoid of judicial reasoning.

To substantiate this further, the article will be specifically looking at two cases;

(1)  Lord Jagannath Rath Yatra Case, where the supreme court was extremely flippant and turned against its own decision;

(2)   and the Special Leave Petition filed against the Shaheen Bagh protest.

 The Court’s ‘flip-flop’ on Lord Jagannath Rath Yatra

Although Article 25 guarantees the ‘freedom to profess, practise, and propagate religion’, this freedom is subject to public order, morality and health. In the wake of the COVID-19 pandemic, the Supreme Court had to decide whether to allow mass gathering of devotees for Lord Jagannath Rath Yatra in Puri, Odisha or restrict the same owing to dangers to public health.

On July 18, a three-judge bench headed by the Chief Justice SA Bobde, citing the restriction of ‘health’ under Article 25, declined permission for the Yatra to take place.[xxi]

However, just four days later, on July 22, the same bench, on the assurance by the State Government of Odisha lifted the restriction subject to certain conditions. The court advanced,

 “it might be possible to conduct the Rath Yatra at Puri ‘in a limited way without public attendance’… Indeed, if it is possible to ensure that there is no public attendance, we see no reason why the Rath Yatra cannot be conducted safely along its usual route from temple to temple.”

On the other hand, in two contrary Public Interest Litigations (PILs) filed in the Orissa High Court[xxii]: one, to postpone the Yatra and the other, to allow the Yatra, the Court refused to issue a mandamus and held,

“it is up to the State Government to decide whether or not to allow the Rath Yatra.”

It is surprising that the Orissa High Court had already refused to pass an order. The Court had put the responsibility on the State Government to make the final decision and rightly so. Contrary to the Orissa High Court, the Supreme Court took upon itself to pass the final decision. The Supreme Court’s indecision, without giving adequate legal reasoning, shows the rise in judicial arbitrariness and deference to the executive.

In contrast to the Supreme Court’s stance, the Gujarat High Court dealt with two writ petitions that sought permission to hold a “symbolic” Rath Yatra procession. In an urgent hearing, the Court denied the permission stating two reasons;

First, the condition of Ahmedabad on account of the crisis of pandemic of COVID-19; and second, the original order passed by the Supreme Court on restraining the Rath Yatra.

Despite the reversal of the original order by the Supreme Court, the Ahmedabad High Court refused to modify its decision. The court reasoned that the situation of Ahmedabad and Puri could not be compared owing to the difference in the severity of the coronavirus.[xxiii]

In a detailed judgement on July 7,[xxiv] the High Court came down heavily on the State Government. Reprimanding the Government, the court furthered,

“Instead of taking a firm stance and boldly refusing to allow the Rath Yatra procession citing public health reasons, the government chose to follow a policy of appeasement and coaxing to convince the religious leaders, temple authorities and organizers connected with Shri Jagannath   Rath Yatra to avoid holding the Rath Yatra processions.”

 The Court rightly observed that the litigation should never have come up to the Court since the matter ‘predominantly falls within the domain of the executive wing of the State Government’.

This can be read as another example where the High Court held its ground against the executive.

Interestingly, in a subsequent petition[xxv] filed in the Supreme Court which prayed to restrict access of the general public, devotees and pilgrims to the annual Shri Amarnath Yatra, the petitioner relied on the Court’s decision to allow Jagannath Yatra just a month back. The Court conveniently held,

“The decision as to whether a pilgrimage should be permitted and, if it is permitted, the safeguards which should be observed are matters which fall within the domain of the executive arm of the State.”

Better wisdom prevailed and the Court rightly observed that once a decision is taken by the local administration, only then can a court intervene under Article 32 to test its validity.

The whole incident is devoid of any legal, social or even environmental reasoning, as to why the Yatra was allowed a month back and why the encroachment to the State’s duties was done by the Court.

In this regard, Advocate and author Gautam Bhatia argued[xxvi] that this back and forth was ‘a clear case of government firing from the Court’s shoulders’. Thus, it is evident that both – the original decision and its reversal – were devoid of reasons, helping the executive achieve its political objectives through the court of law.[xxvii] 

It has also been argued[xxviii] that the Supreme Court’s decision on Lord Jaganath Yatra might result in a violation of Article 14 of the constitution since such relaxation might not be available to every other religion. And eventually, there will be no end to the ‘juggernaut of judicial evasion’ of the selective enforcement of fundamental rights.

In the past, there have been ample decisions where the judiciary has refused to interfere with the functioning of the executive. The decision of whether or not the Yatra must be held is upon the respective state governments to decide. And if such an executive order is challenged, only then the Court should go into its legality and test its validity under Article 25 or Article 21 of the Constitution.

The implicit arbitrariness in recent judgements by the Supreme Court subjected to the whims of the State Government further threatens the credibility of the court. Especially, as it poses as an institution that stands foremost for the fundamental rights of the citizens.

An ‘Executive-Minded’ Court

“…dissent, by its very definition, cannot be made to order.”[xxix]

In October 2020, the Court delivered its judgement[xxx] on the Special Leave Petition (SLP) that was filed seeking the removal of the Shaheen Bagh protestors, protesting against the Citizenship (Amendment) Act 2019. Even though the petition had become infructuous, since the protest ceased soon after the lockdown was imposed, the court decided to ‘pen down a few more lines’ to decide on the issue having ‘wider ramification’.

The court sought to answer whether the right to protest was absolute vis-a-vis the right to mobility of a citizen. The whole premise of the judgement is that protest happens only as an expression of dissent or in other words, only to disagree with a policy or a decision of the government. That is why the court passed the observations that the expression of dissent is desirable but in ‘designated places alone’.

However, protest happens for a more profound reason than what has been interpreted by the court.[xxxi] The subaltern and the marginalized who don’t have access to the highest echelons of power and are destined to remain oppressed might not have any other recourse but to protest. Even though only in a symbolic sense, through the means of protest, marginalised sections of society can make themselves visible.

Such protests persist solely because the executive fails to promulgate adequate action, hampering meaningful engagement with the protestors. It is in this sense, that the judgement fails to ensure that its citizens continue to enjoy their right to peaceful protests.

Much has been said how this decision of the court is not good law. It has been argued[xxxii] that it places its reliance on Himat Lal K. Shah v. Commissioner of Police, Ahmedabad.[xxxiii] In Himat Lal K. Shah, the Court held that the State can only impose ‘reasonable restriction’ on the right to protest ‘subject to considerations of public order’. And in the present case, the disruption of traffic cannot be a public order issue. Being a Constitutional Bench’s judgement, it was binding on the Court in this case.

Arghya Sengupta goes one step further and argues that the whole judgement is just ‘well-meaning judicial anguish’ but not a ‘binding law’. He argues that since there was no cause for the Court to decide, the judgement is simply devoid of a ratio decidendi. Therefore, the whole judgement is an obiter dicta or rather a ‘lecture given by a judge from the Bench’.[xxxiv]

This judgement seems more absurd since there was no such demand to impose another restriction on the right to protest from the government. Regarding this, V. Venkatesan in his column,[xxxv] remarked that the Supreme Court seems to have become more ‘executive-minded than the executive itself’.

The judgement arose out of a writ petition filed before the Delhi High Court, the court observed that it was the primary duty of the police to maintain law and order. The court held,

no specific writ, order or direction can be issued by this Court as to handle the agitation or protest or the place of protest and the traffic. It all depends upon the ground reality and the wisdom of the police, where situations may keep changing every 10 minutes”

Although, the Supreme Court recognized the indecisiveness of the administrative authorities and remarked that they should not ‘hide behind the court orders or seek support therefrom for carrying out their administrative function’. Yet, it went ahead and imposed additional restrictions on a fundamental right. Ultimately, a review petition has been filed in the Court affording it another opportunity to correct its mistakes.[xxxvi] 

Arghya Sengupta has argued, elsewhere[xxxvii], that the judiciary’s attempt to mediate with the protestors whether or not successful, could ‘erode public confidence in the judiciary’. He furthered that instead of mediation, the courts should have ruled on the constitutionality of CAA.

The Court has skirted this option even on the recent challenge to the three Farm Bills. The Bench headed by CJI SA Bobde remarked that ‘the question of the validity of the three laws can wait’ but the removal of indefinite protest is something that needs alacrity.[xxxviii]  The petition was notably filed keeping the Amit Sahni judgement as a precedent.

Even in the case of ongoing farmers’ agitation, the Court is finding ways to steer clear of taking a stand to rule on the legality of the three Farm Laws. Instead, it is resorting to constituting an ‘independent committee’.

The Court, therefore, seems to continue its pattern of ‘judicial evasion’[xxxix] by simply not hearing cases of public importance which involve questions of rights guaranteed under the Constitution. Even if the court doesn’t intend to, its reluctance is ultimately benefiting the executive.

Final Remarks

On the face of it, it might seem that these decisions are aberrations rather than the norm in the highest court of the country. However, examples of the executive overpowering the judiciary are simply too many to list. 

The third senior-most judge of Delhi High Court, Justice S. Muralidhar, was transferred one day after he made scathing observations for not registering FIRs against the leaders of the ruling party.

Even after a whole year – from the abrogation of Article 370 – almost all of the habeas corpus petitions were left pending in the Jammu Kashmir High Court.[xl]

In one case[xli] in 2019, the Jammu and Kashmir High Court accepted the claim of the Police that the petitioner was never in detention. Later, this claim was disputed through evidence and testimony of two sitting MPs, one of whom was a retired High Court judge. The Court dismissed the petition, stating that under the writ jurisdiction the Court cannot hold an inquiry or take oral evidence and stated that ‘once facts are disputed, the writ petition is rendered not maintainable’. 

On similar lines, in a habeas corpus petition, the Supreme Court accepted the stand of the Jammu and Kashmir administration. The J&K administration had argued that the petitioner, Saifuddin Soz, was never under detention, the court went ahead and dismissed the petition. Only later in the day, media reports showed actual live footage of him being restrained by the police from leaving his premises.[xlii]

In a similar vein, on October 15, the Supreme Court dismissed a habeas corpus petition for the release of  Former Chief Minister Jammu and Kashmir Mehbooba Mufti, stating that it was no longer necessary to decide the case since the government had already released her after a long period of detention.[xliii]

However, even though the petition had become ‘infructuous’ the Court refused to rule on the legality of the detention order. Therefore, giving the State complete impunity for the arbitrary detention. This case shares striking semblance to the Shaheen Bagh judgement where the petition had become ‘infructuous’.

Throughout the two-terms of the ruling government, the Prime Minister has never held back from pressing on the importance of fundamental duties over fundamental rights.[xliv] In tune with the PMs sentiment, CJI Bobde exclaimed[xlv],

“It was implicit in law that legal rights have correlatives of legal duties”

It should be concerning when both the Chief Justice and Prime Minister agree on a conditional conception of fundamental rights enshrined in the Constitution.

The transactional relationship, as interpreted by the CJI, between duties and constitutional rights took substantial form during the Jamia Violence.

On December 15, owing to the Anti-CAA protest, police personnel had allegedly barged into the premises of the Jamia Milia Islamia University. Thereafter, an intervention was sought from the apex court to inquire into the Jamia violence and take cognizance of brutality on the protesters and students. The court had agreed to hear the petition but on the condition that “rioting” and “destruction of the property” must stop.[xlvi]

This condition posed by the court in such dire circumstances reaffirmed the CJI’s statement. It is alarming when the Judiciary chooses to abdicate its responsibility to protect fundamental rights, seeking a negation for fundamental duties.

Fundamental rights are meant to be unconditional. They are not absolute but the performance of fundamental duties cannot be a restriction on their exercise.

The aforementioned instances are not to say that the lower courts haven’t faltered during this year. But it is telling of a larger problem. If the Supreme Court fails to set precedent for the subordinate courts and tend towards the executive, judicial independence is directly under threat. And therefore, the court is defying its foremost duty; the protection of constitutional rights of an individual.

Judicial deference and an overpowered executive, are by no means an ‘aberration’ to the normal course of functioning of the Judiciary. If there was indeed any more doubt left, it would be pertinent to look at how the judiciary decided constitutional bench decisions this year. In 2020, it delivered only 11 constitutional bench judgements and all of them were unanimous decisions, signalling a creeping sense of judicial conformity.[xlvii]

The Shaheen Bagh judgement and the Supreme Court’s decision in Jagannath Yatra are good primers as to how the judiciary has bowed to the executive. It has either chosen not to toe the line or has strayed from taking firm decisions that could challenge the government’s stance. However, comparatively, especially this year, the subordinate courts were much more fearless and independent in keeping the executive in check.

 

Endnotes

[i] Danielle Russ, ‘Without a Purse or a Sword: Defending the Independent Judiciary’ (Drexel Law Review, 1 May 2019) https://drexel.edu/law/lawreview/blog/overview/2019/May/without-purse-or-sword  

[ii] ‘Very Important for Judiciary to Retain Public’s Trust, Says CJI’ The Indian Express (17 December 2019) https://indianexpress.com/article/india/very-important-for-judiciary-to-retain-publics-trust-says-cji-s-a-bobde-6170630

[iii] Anuj Bhuwania, ‘The Crisis of Legitimacy Plaguing the Supreme Court in Modi Era Is Now Hidden in Plain Sight’ Scroll.in (1 December 2020) https://scroll.in/article/979818/the-crisis-of-legitimacy-plaguing-the-supreme-court-in-modi-era-is-now-hidden-in-plain-sight

[iv] Pratap Bhanu Mehta, ‘PB Mehta Writes: SC Was Never Perfect, but the Signs Are That It Is Slipping into Judicial Barbarism’ The Indian Express (18 November 2020) https://indianexpress.com/article/opinion/columns/supreme-court-arnab-goswami-bail-article-32-pratap-bhanu-mehta-7055067

[v] Lydia Finzel, ‘Democratic Backsliding in India, the World’s Largest Democracy | V-Dem’ (V-Dem Institute, 24 February 2020) https://www.v-dem.net/en/news/democratic-backsliding-india-worlds-largest-democracy

[vi] Amy Slipowitz, ‘Why We Should Be Worried About India’s Response to Coronavirus’ (Freedom House, 13 April 2020) https://freedomhouse.org/article/why-we-should-be-worried-about-indias-response-coronavirus

[vii] Steven Feldstein, ‘What Democracy Will Fall Next?’ (Foreign Policy) https://foreignpolicy.com/2020/05/07/democracy-pandemic-coronavirus-hungary-populism  

[viii] Tarunabh Khaitan, ‘Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-State Fusion in India’ (2020) 14 Law & Ethics of Human Rights https://www.degruyter.com/view/journals/lehr/14/1/article-p49.xml

[ix] In-Re Banners Placed On Road Side In The City of Lucknow v. the State of U.P., 2020 SCC OnLine All 244

[x] K.S. Puttaswamy (Retd.) v. Union of India, 2015 (8) SCC 735

[xi] State of Uttar Pradesh v. High Court of Judicature at Allahabad, Special Leave to Appeal (C) No.6286/2020 (SC)

[xii] Sarah Farooqui, ‘The History of the Tablighi Jamaat and Its Place in the Islamic World’ Business Standard India (3 April 2020) https://www.business-standard.com/article/current-affairs/the-history-of-the-tablighi-jamaat-and-its-place-in-the-islamic-world-120040300331_1.html

[xiii] Aditya Menon, ‘COVID-19 In Nizamuddin: Who’s to Blame – Govt or Tablighi Jamaat?’ (The Quint, 1 April 2020)https://www.thequint.com/news/india/coronavirus-covid19-tablighi-jamaat-nizamuddin-markaz-delhi-government

[xiv] Shawn Sebastian, ‘After COVID-19 Outbreak at Tablighi Jamaat Conference, Fake News Targeting Muslims Abounds’ (The Caravan) https://caravanmagazine.in/media/after-covid-19-outbreak-at-tablighi-jamaat-conference-fake-news-targetting-muslims-abounds

[xv] ‘Expedite Hearing in Cases against Foreign Tablighi Jamaat Members, Supreme Court​ to Trial Courts’ The New Indian Express (2 November 2020) https://www.newindianexpress.com/nation/2020/nov/02/expedite-hearing-in-cases-against-foreign-tablighi-jamaat-memberssupreme-court​-totrial-courts-2218266

[xvi] Karan Tripathi and Maisah Irfan, ‘Criminalised By Govt, Cleared By Courts: The Tablighi Story’ (Article 14, 18 December 2020) https://www.article-14.com/post/criminalised-by-govt-cleared-by-courts-the-tablighi-story

[xvii] Md Kameual Islam v.State, rep. by The Inspector of Police, 2020 SCC OnLine Mad 1171

[xviii] Konan Kodio Ganstone v. State of Maharashtra, Criminal Writ Petition No. 548 of 2020 (Bombay HC)

[xix] Farhan Hussain v. State, 2020 SCC OnLine Kar 1194

[xx] Md. Enamul Hasan v. Union of India, Criminal Writ Jurisdiction Case No. 367/2020 (Patna HC)

[xxi] Odisha Vikash Parishad v.Union of India, (2020) 6 SCC 682

[xxii] Surendra Panigrahi v. State of Odisha, 2020 SCC OnLine Ori 522

[xxiii] Mahant Akhileshwardasji Ramlakhandasji v.State of Gujarat, 2020 SCC OnLine Guj 917

[xxiv] Hiteshkumar Vittalbhai Chavda v. Jagannathji Mandir Trust, 2020 SCC OnLine Guj 1057

[xxv] Shri Amarnath Barfani Langars Organisation v. Union of India, Writ Petition (Civil) No. 623/2020 (SC)

[xxvi] Gautam Bhatia, ‘ICLP Turns 7 || A Constitutionalism Without the Court’ (Indian Constitutional Law and Philosophy, 1 August 2020). https://indconlawphil.wordpress.com/2020/08/01/iclp-turns-7-a-constitutionalism-without-the-court

[xxvii] Debabrata Mohanty, ‘How Centre, Nudged by PM Modi, Made a Case for Rath Yatra in Supreme Court’ (Hindustan Times, 22 June 2020) https://www.hindustantimes.com/india-news/how-centre-nudged-by-pm-modi-made-a-case-for-rath-yatra-in-supreme-court/story-RkisFIzBAHlXtToGe51AWP.html

[xxviii] Ganesh Khemka and Dhruv Jadhav, ‘SC’s Order on Rath Yatra: A Juggernaut of Judicial Evasion?’ (The Wire) https://thewire.in/law/scs-order-on-rath-yatra-a-juggernaut-of-judicial-evasion

[xxix] Editorial, ‘Dissent, to Order’ The Indian Express (9 October 2020) https://indianexpress.com/article/opinion/editorials/shaheen-bagh-protest-anti-caa-sit-ins-supreme-court-6716480

[xxx] Amit Sahni v. Commissioner of Police, 2020 SCC OnLine SC 808

[xxxi] Badri Raina, ‘Sanitising the Polity: Making the Protester Invisible’ (The Wire) https://thewire.in/rights/sanitising-the-polity-making-the-protester-invisible-shaheen-bagh-supreme-court

[xxxii] Vakasha Sachdev, ‘What Does SC’s Shaheen Bagh Verdict Mean for Our Right to Protest?’ (The Quint, 8 October 2020) https://www.thequint.com/news/law/supreme-court-shaheen-bagh-judgment-impact-right-to-protest-violation-of-sc-judgment-international-law-experts

[xxxiii] (1973) 1 SCC 227

[xxxiv] Arghya Sengupta, ‘The Supreme Court Judgement in Shaheen Bagh Is Not Binding Law’ (Vidhi Centre for Legal Policy, 20 November 2020) https://vidhilegalpolicy.in/blog/the-supreme-court-judgment-in-shaheen-bagh-is-not-binding-law

[xxxv] ‘Supreme Court’s Shaheen Bagh Judgment Will Lead to Fresh Curbs on Right of Peaceful Protest’ (The Wire) https://thewire.in/law/supreme-court-shaheen-bagh-judgment-fresh-cubs-right-of-peaceful-protest  

[xxxvi] Legal, ‘Twelve Shaheen Bagh Activists Seek Review of Supreme Court Judgment’ The Hindu (New Delhi: 16 November 2020) https://www.thehindu.com/news/cities/Delhi/twelve-shaheen-bagh-activists-seek-review-of-supreme-court-judgment/article33108325.ece

[xxxvii] Arghya Sengupta, ‘Good Intentions, Wrong Choice: Forget Shaheen Bagh. Supreme Court Should Rule on CAA’s Legality, without Fear or Favour’ (Times of India Blog, 29 February 2020) Good intentions, wrong choice: Forget Shaheen Bagh. Supreme Court should rule on CAA’s legality, without fear or favour (indiatimes.com)

[xxxviii] ‘Farm Law Stir: SC Asks If Legislations Can Be Put on Hold till Petition on Protests Is Heard’ (Scroll.in) https://scroll.in/latest/981520/farm-law-stir-protest-is-constitutional-till-it-does-not-endanger-life-says-supreme-court 

[xxxix] Gautam Bhatia, ‘“O Brave New World”: The Supreme Court’s Evolving Doctrine of Constitutional Evasion’ (Indian Constitutional Law and Philosophy, 6 January 2017) https://indconlawphil.wordpress.com/2017/01/06/o-brave-new-world-the-supreme-courts-evolving-doctrine-of-constitutional-evasion

[xl] Apoorva Mandhani, ‘99% habeas corpus pleas filed in J&K since Article 370 move are pending, HC Bar tells CJI’ (The Print, 28 June 2020) https://theprint.in/judiciary/99-habeas-corpus-pleas-filed-in-jk-since-article-370-move-are-pending-hc-bar-tells-cji

[xli] Muzaffar Ahmad Shah v. State of Jammu and Kashmir, 2019 SCC OnLine J&K 919

[xlii] V. Venkatesan, ‘Why Saifuddin Soz’s Failure to Secure Freedom from ‘House Arrest’ Should Concern Us All’ (The Wire, 2 August 2020) https://thewire.in/rights/supreme-court-soz-detention-jk

[xliii] Abhinav Chandrachud, ‘Jail, Bail, And Judgment By Adjournment; (Bloomberg Quint, 19 November 2020) https://www.bloombergquint.com/opinion/jail-bail-and-judgment-by-adjournment-the-supreme-court-on-liberty-by-abhinav-chandrachud 

[xliv] Apoorva Mandhani, ‘Fundamental Duties That PM Modi Invokes Were Introduced by Indira Gandhi during Emergency’ (The Print, 27 December 2019) https://theprint.in/india/fundamental-duties-that-pm-modi-invokes-were-introduced-by-indira-gandhi-during-emergency

[xlv] PTI, ‘Real Rights Are a Result of Performance of Duty: CJI Bobde on the Constitution’ (The New Indian Express, 22nd February 2020) https://www.newindianexpress.com/nation/2020/feb/22/real-rights-are-a-result-of-performance-of-duty-cji-bobde-on-the-constitution-2107069

[xlvi] ‘“Rioting Must Stop”: SC Puts Condition before Hearing Police Crackdown on Jamia Students’ The Indian Express (16 December 2019) https://indianexpress.com/article/india/citizenship-amendment-act-bill-cab-caa-supreme-court-jamia-protests-amu-6169443

[xlvii] Prachi Bhardwaj, ‘2020 Roundup: 11 Constitution Bench Judgments, 17 Judges, Zero Dissent’ (SCC Blog, 23 December 2020) https://www.scconline.com/blog/post/2020/12/23/2020-roundup-11-constitution-bench-judgments-17-judges-zero-dissent 

 

 

 

 

 

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