Demonetisation: Why people would do good in avoiding SC on deaths in queues
Where there is a dispute on the basic facts of the case, unlike in a trial court which is obligated to conduct a trial and assess evidence, the Supreme Court may refuse to entertain an Article 32 petition asking the parties to approach a lower court.
Along with the economic chaos that has been unleashed by the move to demonetise the Rs 500 and Rs 1,000 notes, another distressing fallout has been the number of deaths allegedly happening in long queues or cramped bank campuses.
Siya Ram, a 70-year-old man who stood fruitlessly in a queue for three days to exchange his notes, collapsed and died from a hemorrhage perhaps brought on by the strain of the exercise. It appears that Siya Ram’s family has now moved Supreme Court under Article 32 of the Constitution, seeking compensation for his death from the Union government.
The Supreme Court is an odd choice of a forum as the first instance for the family. There are good reasons why lawyers don’t advise clients to approach the Supreme Court first. For one, if things go wrong with the case and you don’t get what you asked for, there is no higher forum of appeal to set it right. Second, the Supreme Court has, over the years, adopted an unwritten policy of refusing to hear Article 32 petitions, directing parties to approach the jurisdictional high court, unless it’s a matter of national importance. This has been a source of concern in some quarters for a while as the right to approach the Supreme Court under Article 32 is a fundamental right, and by adopting such a policy, the Supreme Court has effectively nullified this fundamental right. The Supreme Court has, over the years, interpreted Article 32 to be discretionary, even if the right to file and be heard is a fundamental right. This is perhaps a distinction that the Constitution framers did not have in mind.
There are pragmatic reasons why Supreme Court has adopted this policy. The Supreme Court’s workload over the years has increased dramatically, partly due to the court’s own liberal use of its jurisdiction to hear Special Leave Petitions and partly due to the increasing population and economic growth in India spurring growth in litigation overall. As a rule of thumb, unless the issue being agitated in an Article 32 writ petition relates to an issue of national importance (judicial appointments or high-level corruption) or a problem across multiple states (female foeticide or drought relief), the court generally declines to hear an Article 32 petition. However, that doesn’t mean the court will inevitably dismiss it. It usually gives the petitioner the option of approach the high court first, and then coming up to the Supreme Court in appeal if she so chooses to.
There is one other reason why Siya Ram’s family approaching the Supreme Court may not be a sound litigation strategy. The Supreme Court is not a fact-finding forum. Where there is a dispute on the basic facts of the case, unlike in a trial court which is obligated to conduct a trial and assess evidence, the Supreme Court may refuse to entertain an Article 32 petition asking the parties to approach a lower court where such disputed questions of fact can be sorted out. This would be appropriate specifically in a case like this where the government is likely to deny responsibility for the death, questioning the attribution of the death to the demonetisation move.
But even if the Supreme Court entertains the writ petition, it would not be without precedent. The court has evolved the concept of a “constitutional tort” – where a person whose fundamental rights have been violated by an action (or inaction) of the government can move the constitutional courts, namely the high courts and the Supreme Court for relief. First elaborated in the context of custodial deaths, this principle has been expanded by the Supreme Court to grant compensation for crimes committed by other government employees also. Siya Ram’s family contend therefore that the chain of causation for Siya Ram’s death leads directly to the Union government’s policy – a violation therefore of the right to life protected under Article 21 and consequently, deserving of compensation on the part of the government.
That there have been many instances of people standing in seemingly interminable queues for cash or deposit cannot be disputed. How many deaths and whether they are directly due to the policy is disputed by the government. Unlike with natural or manmade disasters (such as the recent derailment in Uttar Pradesh) the government has not come forward to announce any ex-gratia compensation for those who have died in queues.
Whether the Supreme Court grants Siya Ram’s family the compensation or not, there are still questions that the government must answer: Did it foresee the level of disruption that demonetisation would cause in people’s lives and in the economy? If so, what measures were taken beforehand to minimise the same? And why aren’t they working as what was promised to be a few days of disruptions looks like it’s going to stretch over months?
Whether the demonetisation exercise ultimately benefits the Indian economy, in the long run, remains to be seen but the government of the day needs to be held accountable all the same for the shoddy implementation and haphazard rulemaking we’re seeing.
The author is an advocate and visiting fellow, Vidhi Centre for Legal Policy. Views expressed here are purely personal.
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