Courts Shouldn't Waver In Granting Real Relief After Deciding Something To Be Unconstitutional : Justice Deepak Gupta

Former Supreme Court judge Justice Deepak Gupta expressed criticism of the approach of Constitutional Courts in refraining from giving actual relief to citizens despite holding that certain executive decisions are unconstitutional.

While delivering an online lecture on the topic “Developments in Fundamental Rights in Last Decade” as part of LiveLaw's 10th anniversary lecture series, Justice Gupta cited the example case of Anuradha Bhasin v. Union of India and Ors which challenged the  internet and movement restrictions imposed in the Jammu and Kashmir region in India on August 4, 2019, following the abrogation the special status of the State. 

Justice Gupta said: “The Court decided everything in favour of the Claimant. It is a very long and elaborative judgment going into 100s of pages as to what is the meaning of right of freedom of speech and expression and that it cannot be curtailed.”

However, he pointed out that how even after everything was in the favour of claimants, they were not given substantial reliefs. “Finally the court said that we leave it to the state to decide in what manner and how these rights should be restored. I think once the constitutional courts decide that something is unconstitutional... Courts should not waver while guaranteeing reliefs to the citizens”.

Would not have allowed ED director to continue

In the interactive session which followed the lecture, a query was raised regarding the approach taken by the Supreme Court in the case relating to the Director of the Directorate of Enforcement, whereby he was allowed to continue despite the finding that the extensions of his term were illegal.

"All I will say is that if I would sit in a Bench, I would not have allowed them to do so.” He went on to state that sometimes there is a need to be practical as well, “where you can have held it illegal but can’t have the post vacant even for a single day”. At the same time, he pointed out, “It is not the first time it(ED Director's extension) has been held illegal”

He also emphasized Justice Gavai’s observation in the mentioned case, where he said:

“Is there no other person in the entire organisation who is competent to discharge these responsibilities?”

Supreme Court's 'Illegal But Permissible' Jurisprudence

Where Supreme Court let down the citizens

In the lecture, after discussing several Supreme Court judgments which expanded the fundamental rights jurisprudence, he also cited certain judgments, which in his opinion, let down the citizens. He mentioned judgments like National Investigation Agency v. Zahoor Ahmad Shah Watali (which laid down a narrow interpretation of UAPA bail provisions), Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633(which upheld PMLA provisions), Zakia Ahsan Jafri and another versus State of Gujarat and another, 2022 LiveLaw (SC) 558(which made adverse observations against Teesta Setalvad and other activists).

Regarding these judgments, Justice Gupta remarked: “These and there are a few other judgments where Court, in my view, failed to uphold the liberty of citizens.”

Why should habeas corpus petitions be kept pending?

Lastly, he said, "There was a failure of the Supreme Court in the field of fundamental rights by not deciding such matters. Why should habeas corpus petitions be not decided for months?”

Recalling his days of legal practice, Justice Gupta said that earlier, habeas corpus petitions used to be given prime priority and would be taken up at any time, whether day or night. Now, these petitions are "kept" pending till they become infructuous after the detenu is released, he lamented. Even after the detenu is released, he is entitled to know the reasons of his detention, Justice Gupta stressed.

In this context he referred to a celebrated judgment of the Delhi High Court in Bharti Nayyar v. Union of India, ILR 1977 Delhi 23, passed by Justices S Rangarajan and R Aggarwal. In this case, wife of Kuldip Nayyar sought for quashing the order of detention passed against him. Subsequently, while the case was pending, respondents apprised the Court that detenu had been released and that the order of detention had been revoked. However, the Court remarkably held that “Detenu has a right to know why he was detained even for a single day and whether his detention is legal or illegal.”

In the end of his lecture, Justice Deepak Gupta expressed his content with how important cases pertaining to the dilution of Article 370 of the Constitution of India is being heard.

“These are the matters which should be heard, which affect the rights.”

Supreme Court has duty to protect fundamental rights of citizens

On being asked whether the Supreme Court should be more assertive of protecting rights, he replied:

“Supreme Court is not only an adjudicator of disputes; it is also the protector of human rights of the citizens. Ours is a unique constitution where we have an Article 32 of the Indian Constitution. Where if my fundamental rights are invaded, I have a fundamental right to go to the Supreme Court. Which other constitution has that? Does not that itself show that a duty is casted upon the Supreme Court to protect the fundamental rights of citizens.”

He clarified that this does not mean that every time a fundamental right is violated the Supreme Court must interfere. However, when there are important wide-ranging matters that involve invasion of fundamental rights of large number of people then the Apex Court must interfere.

Justice Gupta, in a lighter vein, said that we can be proud of several judgments while not so happy with the others and quoted Charles Dickens as a concluding statement:

“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of light, it was the season of darkness, it was the spring of hope, it was the winter of despair.”

The lecture can be watched here.