Two recent petitions filed before the Supreme Court seeking judicial intervention on the issue of deployment of central security forces in states, represent a dangerous new front for judicial activism in India.

The first instance involves a Supreme Court order upholding the decision of the Calcutta High Court ordering the deployment of central paramilitary forces to provide security during panchayat elections in West Bengal. The origins of the Calcutta High Court’s order lie in a public interest litigation filed by Suvendu Adhikari, the head of the state unit of the Bharatiya Janata Party in West Bengal.

Such a demand by the political parties in the Opposition is not entirely surprising since panchayat elections in West Bengal have had a violent history. But the High Court’s judgment allowing the BJP’s plea and ordering the deployment of central security forces is bereft of any legal reasoning or evidentiary basis. The High Court merely justifies its order on the grounds that deployment of central paramilitary troops was required to ensure “fair and free elections” but does not state the source of its power to pass such directions.

The Supreme Court bench, consisting of Justice BV Nagarathna and Justice Manoj Misra upheld the Calcutta High Court judgment on similar logic that deployment of central paramilitaries would ensure the conduct of free and fair elections. In other words, like the Calcutta High Court the Supreme Court fails entirely in providing the legal basis for judicial intervention in deployment of central security forces when even the State Election Commission, which oversees the panchayat elections, were against the deployment of such forces.

A striking contrast to the above decision is the Supreme Court’s reluctance on June 20 to grant an urgent hearing to a petition by the Manipur Tribal Forum seeking directions for the Army to take complete control of the law and order situation in order to protect Kuki tribals, their religious institutions and their property from the continuing violence in Manipur. While the army is already deployed in Manipur, it is under the control of the state government. This plea came in the wake of continued violence in the state despite assurances being made in court by the Union of India that order was being restored in the state.

Despite the petitioners actually having evidence of the number of Kukis killed and churches destroyed, a bench of the Supreme Court consisting of Justice Suryakant and Justice MM Sundresh, refused the Manipur Tribal Forum an urgent hearing, stating that it was a purely “law and order issue”. Instead, it ordered the petition to be listed on July 3 after the Supreme Court reopens from the vacation. (The very same bench ordered the aforementioned appeal by the state of West Bengal against the Calcutta High Court order to be listed the very next day for a hearing.)

The separation of powers

In addition to the obvious contradictions in the Supreme Court’s approach to the situation in West Bengal and Manipur, there is the critical issue of whether the judiciary should be wading into issues of troop deployment to maintain law and order. Even by the standards of judicial hyper-activism in India, this is a dangerous new frontier for the Indian judiciary. It now risks coming across as a partisan institution favouring specific political camps. This is because the deployment of security forces will always be entirely in the realm of politics. That is why it has always been vested in elected state governments accountable to their electorate and not unelected judges who are by design unaccountable to voters.

The problem in India is that elected governments have opened the door for judicial intervention into this area. For example, in 2017 the West Bengal state government asked the Calcutta High Court to stop the withdrawal of central security forces that were deployed in the Darjeeling district in the aftermath of violence during the agitation for a separate state of Gorkhaland. The BJP-led Union government at the time was very critical of the High Court’s interference in the deployment of security forces, stating in its affidavit that

  “the direction [the High Court order] ignores and virtually obliterates the very concept of separation of powers”...“The maintenance of order and the security of the country, which includes the deployment of police and armed forces, is a fundamental facet of the governance...and is a core governmental function of the executive wing of the state. These matters cannot be the subject matter of judicial review or adjudication by a court.”  

The Supreme Court then overruled the Calcutta High Court and allowed the Union Government to withdraw its forces from West Bengal.

Federalism and political accountability

Apart from the separation of powers argument is the issue of federalism. Law and order is in the realm of the state governments, which are accountable to the citizens of the state. The only legal way for central security forces to be deployed in states is for the union to invoke Article 356 to dismiss state governments. The only exception that been established in India is when the unelected bureaucrats of the Election Commission of India have usurped some of these powers during general elections and state elections in order to deploy central security forces during elections to supposedly ensure non-interference by the state police.

The legal basis of this move is doubtful and there is no clarity on how accountability is to be fixed when central security forces abuse their powers. For example, in the last state elections in 2021, troopers from a central paramilitary force opened fire and killed four people (allegedly Trinamool Congress workers) in Cooch Behar, leading to a political brawl between the BJP and Trinamool Congress. The Trinamool Congress also alleged that central paramilitary forces were intimidating voters. Yet there is nothing that the electorate can do to hold either the Election Commission or the central paramilitary forces accountable for their actions.

This arrangement flies in the face of the constitutional scheme where state governments are responsible for law and order. Add the judiciary to the mix and the situation becomes far more complicated. What happens if a bunch of nervous central security forces gun down innocent citizens during the state panchayat elections when even the State Election Commission has made it clear that it does not want these forces to be deployed? Can the citizens of West Bengal demand the resignation of judges from the Calcutta High Court and Supreme Court who made the political decision to deploy these forces?

Slippery slope

Forgetting for a moment the complexities of federalism and separation of powers, there is the simple question of ensuring the continued legitimacy of the judiciary as an apolitical institution. If there are no legal principles guiding these judicial decisions to deploy central security forces in a particular state, how is the judiciary going to ensure consistency and impartiality in its decisions?

Will the Delhi High Court order the deployment of the Army within the city of Delhi the next time there are anti-Muslim riots? Will the Guwahati High Court order deployment of Army troops in a situation where Bengali-speaking citizens in Assam are attacked? What if these High Court refuse to do when their counterparts in other states and the Supreme Court issue similar orders?

Once a precedent is set in West Bengal or Manipur, the judiciary risks coming across as a partisan institution for failing to deploy troops in sensitive situations. The Supreme Court should act swiftly to avoid leading the rest of the judiciary into this trap.

The writer is a lawyer