Saturday, September 29, 2012

Judges must not lose sleep over such matters

(First appeared in The Pioneer dated  September 19, 2012)


It is not often that the Chief Justice of India takes swipes at sitting judges of the Supreme Court over verdicts they have passed. So, when Chief Justice of India SH Kapadia remarked recently at a function that “judges must apply the principle of enforceability before propounding legal principles and passing orders”, the statement generated a great amount of buzz. He was referring to a ruling by Justice BS Chauhan that fundamental rights also included the ‘right to sleep’. Justice Chauhan and Justice Swatanter Kumar formed a two-judge bench which in its verdict on February 23 had slammed Delhi Police for its brutal midnight action against followers of Baba Ramdev who had gathered at Ramlila Maidan in Delhi. Justice Chauhan had said that a citizen had the right to sound sleep because sleep is fundamental to life.
While not criticising the judge’s interpretation that the right of a citizen to sleep is part of his fundamental rights, Chief Justice Kapadia nevertheless said, “Right to privacy had been made a fundamental right. Now we hear that right to sleep is also a fundamental right… If we lay down a policy and the Government says it cannot implement it, can we enforce it by resorting to contempt jurisdiction?” In making those remarks, the Chief Justice has re-opened a debate on the extent to which the scope of the ‘right to life’ and ‘personal liberty’ as enshrined in Article 21 of the Constitution can be expanded. The matter of enforceability flows from that widening canvas, because the larger and more broadbased the ‘right to life’ gets, the more difficult it can become for the new interpretations to be implemented effectively.
Interestingly, much the same apprehensions that Chief Justice Kapadia has expressed now were raised by former Union Minister, commentator and author Arun Shourie more than a decade ago in his book, Courts and their Judgments. In the chapter titled, From “life” to “life with dignity” to the pay if Imams, Mr Shourie writes, “…If orders are of such sweep that they cannot be implemented, or if no one seriously follows them up to ensure that they are implemented, the orders will boomerang on those who gave them.” It is almost as if the author is referring to the February 23, 2012, ruling on the ‘right to sleep’. In any case, his observations indeed were in the context of the growing ambit of the ‘right to life’.
It is true that the Supreme Court has been constantly expanding the reach of fundamental rights, but as Chief Justice Kapadia has pointed out, such expansion must always and necessarily connect to the core constitutional philosophy of Article 21. Any deviation from that principle is bound to result in verdicts that are not just non-enforceable but also legally suspect. In the present case, for instance, what about the right of the homeless to sleep on pavements or in public places? Justice Chauhan has said that such acts did not have the cover of the fundamental right to sleep. The question is: If indeed the ‘right to sleep’ is a fundamental right, why should the homeless — who deserve the right as much if not more than the better-off — be deprived of a sound sleep wherever they can afford to do so? Such tricky issues lay bare the difficulty of enforceability that both Chief Justice Kapadia and Mr Shourie have referred to.
Eight years ago, the Supreme Court ruled on the legal enforcement of the ‘right to food’ as a fundamental right under Article 21. In response to a petition by the People’s Union for Civil Liberties, the apex court in various interim orders on a host of public welfare schemes related to food such as the Mid-day Meals Scheme and the Antyodya Anna Yojana said that the ‘right to food’ and the ‘right to nutritious food’ are the fundamental rights of every citizen of the country. While there is nothing disputable about this contention, the fact of the matter is that the sweeping scope of this verdict, even if interim, has made it difficult for authorities to enforce this. This is despite the various panels that the apex court has set up to monitor the implementation of its elaborate orders.
The race to expand the meaning of Article 21 has its origin to a large extent in the Kharag Singh versus State of UP case. Mr Shourie quotes in his book from the ruling of the Supreme Court in that case to demonstrate how suddenly the meaning of life and personal liberty acquired larger and even larger proportions. To begin with, Article 21 says, “No person shall be deprived of his life and personal liberty except according to procedure established by law”. In the Kharag Singh case, Mr Shourie says, the judges held that personal liberty as in Article 21 is used as a “compendious term to include within itself all the varieties of rights which go to make up the personal liberties of man other than those within the several clauses of Article 19 (1).”
The author then goes on to say that soon after, ‘speedy trial of cases’ came to be added to the scope of Article 21. It did not end there; a succession of judgements — right to a protected (clean and eco-friendly) environment, right against solitary confinement, right against delayed execution, right against public hanging, and also the right to expeditious police investigation — emphatically enlarged and gave a brand new interpretation to the matter of fundamental rights as envisioned under Article 21.
But if we look back dispassionately and study the situation, very few of these rulings have been effective in practice. For example, speedy trials are still a chimera and delayed executions (especially of terrorists) are the norm.
Similarly, while dealing with the Unnikrishnan case of the early 1990s, the Supreme Court had opined, “Though right to education is not stated expressly as a Fundamental Right, it is implicit in and flows from the right to life guaranteed under Article 21…” This is yet another classic instance of a ruling that not only tested the flexibility of the scope of Article 21 but also came to be observed in breach more often than not. What else can explain the arrival, despite this verdict, of a special Act to serve the purpose — the Right of Children to Free and Compulsory Education Act, better known as the Right to Education Act — which came into force earlier this year? The Act in fact accords primary education a legal status which is on par with the right to life and personal liberty under Article 21.
Clearly, the Supreme Court has over the years come to conclude that it is not just the personal liberty and life that have cover under Article 21, but nearly everything else that is needed for these two to be effectively implemented. In other words, as Mr Shourie remarks in the book, the state has progressively come to be “under a constitutional mandate to provide facilities that are needed for citizens to be able to partake” the new expanded rights. Mr Shourie puts it succinctly when he comments, “From what was intended to protect persons against arbitrary arrest and restraint, against physical coercion by organs of the State, Article 21 has become the device… for requiring the state to provide in effect every thing that would make a person’s life a life of dignity and fulfillment… The point is about liability, about enforceability.” Precisely so.
Thus, we are back to square one. The ‘right to sleep’ is destined to turn out to be as uneforceable a ruling as the many others made by the Supreme Court in the preceding years to enlarge the scope of fundamental rights.

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