The right to effective remedies in India’s constitutional courts has always been a contested one. Scholars thus had deplored the Supreme Court’s refusal to hold stay hearings in cases involving time-sensitive constitutional challenges, leaving the outcomes in such cases only favouring those in power.
Courts have a limited role in moulding relief in cases, which turn out to be fait accompli. The courts very often find that irreversible damage had already been caused because of the failure to stay the legislation or scheme or directives under challenge, till all parties have been fully heard. The Supreme Court’s failure to stay the Aadhaar Act, demonetisation, abrogation of Article 370 of the Constitution, the Citizenship Amendment Act and the Rules, the electoral bonds scheme, and the legislation to appoint Election Commissioners through a collegium with more representation to Government nominees are a few recent instances.
This is because the courts believe that they are bound by the doctrine of presumption of constitutionality of legislation, unless those challenging a law show a breach of Constitutional provisions. The three new laws replacing the Indian Penal Code, Code of Criminal Procedure and the Evidence Act, could not be challenged prior to their notification after securing the President’s assent, precisely for this reason: once notified, the courts would now not find it reasonable to stay them, without hearing all the stake-holders. Meanwhile, the new laws that had invited widespread protests would become fait accompli.
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But there have been exceptions to this rule. In 2007, the Supreme Court stayed the reservation of 27 per cent seats for the Other Backward Classes in higher educational institutions, although its final verdict in this case was in favour of the Union Government in 2010. Likewise, the Court’s timely intervention ensured that the Modi government kept the controversial farm laws in abeyance, before they were effectively withdrawn following sustained protests from farmers. While the courts have a legitimate reason to defer to laws made by Parliament, the directives of the executive governments, issued without the requisite legislative support, do not merit a similar degree of deference by the courts.
Violating secularism
Therefore, when the Uttar Pradesh, Uttarakhand and Madhya Pradesh governments recently directed the food stalls, shacks and eateries along the route of Shiv Bhakts’ annual trek, ‘Kanwar Yatra’ to display the names of their owners and staff, the Supreme Court promptly heard the initial challenges to their constitutional validity from concerned citizens and stayed them on July 22 till it fully heard all contentions. A two-judge bench of the Supreme Court, comprising Justices Hrishikesh Roy and S.V.N .Bhatti, heard petitions challenging these directives filed by the Association for Protection of Civil Rights, Lok Sabha member belonging to Trinamool Congress, Mahua Moitra, academic Apoorvanand, and columnist Aakar Patel.
The petitioners challenged the directives on the ground that they violated secularism and fundamental rights of equality, non-discrimination and dignity of life. The bench reproduced the original directive (after translating it from Hindi to English) issued by the police in Muzaffarnagar, Uttar Pradesh threatening action in the event of non-adherence by the owners of eateries. During the Shravan Kanwar Yatra, a large number of pilgrims called Kanwariyas from States neighbouring western Uttar Pradesh collect water from Haridwar and pass through Muzaffarnagar district. The pilgrims abstain from certain food items in their diet. The directive vaguely referred to some past instances where some shopkeepers “selling all types of food items on Kanwar Route named their shops in such a way that it created confusion among the Kanwariyas and created a law and order situation”.
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To prevent such recurrence and “in view of the faith of the devotees,” hotels, dhabas and shopkeepers selling food items on Kanwar Route have been “requested” to “voluntarily” display the names of their owners and employees, the directive read. But as the hearing in the Supreme Court showed, the implementation of the directive was anything but voluntary. Those who defied the directives were asked to pay hefty fines, or face the prospect of an economic boycott. The directive claimed that the intention of the administration is not to create any kind of religious discrimination but only to provide convenience to the devotees passing through the Muzaffarnagar district, to “counter allegations”, and to save the law and order situation.
The directive also claimed that this system had been prevalent in the past also. But as the Supreme Court’s hearing of the case showed, these were vacuous claims. The bench noted that if the intention is to provide only vegetarian food to the Kanwariyas, the impugned directive requiring the food business operators to display the names of their owners and employees is, according to the petitioners, contrary to constitutional and legal norms. The bench also noted the concern of the petitioners’ counsel that the directive is discriminatory and would further the cause of untouchability. In other words, the petitioners sought to expose the specious, implied claim of the police that to require the vendors to display the names of the owners and staff in his/her establishment could be read as a measure to ensure vegetarian food for the pilgrims.
The bench mentioned the petitioners’ allegation that as a consequence of the directive, some of the employees of the eateries have been terminated affecting their rights under Article 19(1)(g) of the Constitution which guarantees the right to practise any profession, or to carry on any occupation, trade or business. The bench observed in its order: “It is permissible for the authorities to ensure that the Kanwariyas are served vegetarian food conforming to the preferences and also ensure hygienic standards. In furtherance to this, the competent authority may perhaps issue orders under the Food Safety and Standards Act, 2006 and the Street Vendors Act, 2014. However, the legal powers vested on the competent authority cannot be usurped by the Police, without legal foundation.”
It did not take much time for the bench to understand that the directives were aimed against minorities and therefore, prima facie, suffered from malice. The petitioners also brought to the notice of the bench that there is no instance of any similar directives in the past years, and therefore, the timing of their issue on the eve of the Kanwariya Yatra for this year smacked of fissiparous tendencies. The bench ordered suo moto impleadment of the State governments of Uttar Pradesh, Uttarakhand, Madhya Pradesh and Delhi, and prohibited the enforcement of these directives till the next date of hearing. “In other words, the food sellers (including dhaba owners, restaurants, foods and vegetable sellers, hawkers, etc) may be required to display the kind of food that they are serving to the Kanwariyas. But they must not be forced to display the name/identity of the owners and also the employees, deployed in their respective establishments,” the bench’s order reads.
For a change, the Supreme Court has demonstrated that it is capable of being sensitive during critical times, when civil society seeks its timely and clear intervention to nip in the bud malicious and unconstitutional steps of those in power.
V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues.
