Indian democracy is battling the toughest time since Indira’s Gandhi’s emergency. Breach of fundamental rights especially the criminalization of dissent (Article 19- freedom of speech and expression) and intolerance and insecurity created by jingoistic majoritarianism is profound and omnipresent in the country. Adding fuel to the flame, the independence of the Indian judiciary, widely acclaimed as a common man’s luxury to seek justice, the watchdog of constitution and citizen’s fundamental rights is at stake. While the government is indulging in invoking draconian laws like the National Security Act and Unlawful Activities Prevention Act to crush democratic dissent, the judiciary is frantic to punish bona fide expression of discontent by foisting contempt law. This metamorphosis spells an unlikely ‘autocratic streak’ in the ‘common man last resort to justice’. Perusing the supreme court’s recent judgments and standpoints, a tilt in favor of executive and gross denial of succor to the vulnerable is patent. Apex courts nonchalance on grave issues like the citizenship amendment act (CAA), bifurcation of Kashmir, internet shutdown in Kashmir, etc. and prioritization of picayune affairs like Prashant Bhushan’s tweet, Arnav Goswami’s petition manifests a state of ‘judicial dereliction’. Taking office in 2014, the Modi government was expedited to legitimize government meddling in judicial appointments by enacting the 99th amendment act (establish national judicial appointment commission to replace the collegium system). Even though it was struck down by the supreme court, later years conduct reveals a de facto government control over court proceedings destabilizing the checks and balance mechanism prescribed to contain institutional excesses. The higher judiciary’s new avatar as ‘executive court’ would cause irretrievable damage to India’s constitutional democracy.
India’s experience with judicial aberration during Indira’s emergency was horrid. In 1973, then Prime Minister Indira Gandhi appointed a docile contender as Chief Justice of India by surpassing the stipulatory seniority principle. This adventurism helped Indira Gandhi when her emergency fiat was challenged before the apex court (ADM Jabalpur v/s Shivkant Shukla). The court green signaled the emergency call and the rest is ‘dark history’. Higher judiciary’s role as a scarecrow when democracy ceased to exist and fundamental rights snatched invited public laceration and positive reforms in later years. Despite all constitutional shielding, history repeats in the same fashion. Prashant Bhushan said ‘politically sensitive cases being assigned to handpicked benches, with no senior judges on them, so that desired outcomes are achieved. The chief justice is working under government pressure’. For the first time in the history of the apex court, four senior judges in the collegium appeared in front of the media accusing the ‘Master of the Roaster’ system in allotting sensitive cases without any consultation. Like Ranganath Misra’s Rajya Sabha avatar (former chief justice who headed Misra Commission which acquitted Congress leaders culpable for anti-Sikh genocide, 1984), Ranjan Gogoi’s post-retirement appointment to the upper house became a hotly debated topic. In all three high profile cases (Ayodya, Rafale, Assam NRC) in which the ruling regime was a party (in Ayodya dispute, BJP was a partisan of the cause), Ranjan Gogoi who headed the bench ruled in favor of governments interest leaving a ‘speculation of malfeasance’ on his office as chief justice of India. The apex court wrapped up long-standing disputes over Ayodya’s title by outweighing faith over facts. The court agreed that the demolition of Babri Masjid on 6th December 1992 an ‘egregious violation of law’. Alas, the 1045 verdict is a non-sequitur, unincorporated firm legal action against ‘egregious violators of law’. Assam National Register of Citizens (NRC) is the precursor of nationwide-NRC and CAA, unleashing public protestations and indignations fearing a fast-track citizenship purge of Muslims and other vulnerable population. Resembling Nazi’s Nuremberg law and receiving more than 100 petitions against this sinister law, the judiciary had displayed a repulsive take on peaceful protestors and blind eyes on police brutality against students and BJP legislators ‘inflammatory speeches’ targeting Shaheen Bagh. CJI’s revile on anti-CAA protestors saying ‘if people or protestors wanted to take to the streets, then they need not approach the courts’ carries a clear message that ‘passivity is a necessary to approach courts. Stains of sycophancy also hinder the impartial process of justice delivery. Justice Arun Misra invited flaks from the legal community for his panegyric describing Narendra Modi a ‘versatile genius who think globally and act locally’. ‘Modern-day Nero to versatile genius’ mirrors a vagary that would damage the institution’s integrity. Timely criticism and not unlikely panegyric that defines sturdy judiciary. The bail for Anand Teltumba, accused in the Bhim Koregaon case on flimsy evidence and a fierce critic of majoritarianism who compared Modi with Hitler, was rejected by a bench headed by Justice Arun Misra. Justice B.H Loya who summoned Amit Shah vis a vis to Sohrabuddin fake encounter case was found dead. In contrast to an order to clear the mist, the court rebuffed the demand for an independent probe into the mysterious death of Justice B.H Loya. Justice P. Sathashivam, erstwhile CJI, and Governor of Kerala headed the bench that dismissed the second FIR against Amit Shah on the Sohrabuddin fake encounter case. Is the reward for not buckling to the interest of the ruling party or its leaders is death and if vice versa a ‘coveted post-retirement appointment’? These instances divulge that our checks and balance mechanism have a hidden face of the ‘swapping system’. Nations democratic consciousness shaken when a Bihar court ordered the invocation of sedition charges against 49 eminent persons for sighing an open letter to the Prime Minister expressing concerns over mob lynching. The epiphany of the civil rights lawyer stands in consonant with the conduct of the higher judiciary and its subordinates alluding that the court would shirk precluding ‘Modi vision of Majoritarian tyranny’.
Judicial sanctity as the upholder of natural rights of the vulnerable and deprived is waning. Justice Arun Misra ended his legal career with a nightmarish ‘demolition nod’. Controversial order issued by a three-judge bench headed by Justice Arun Misra on 31st August 2020 called for the demolition of 48,000 slum-dwelling situated in railway tracks in Delhi. The court states ‘no court shall stay concerning the removal of the encroachments, interim order shall not be effective’. This order is a blatant violation of the judicial principle of natural justice. In Chameli Singh v/s State of UP (1995), SC held that ‘right to shelter is a component of the right to life under Article 21 and freedom of movement under Article 19 (1) (e)’. High Court of Delhi preconditioned a meaningful engagement between authority and affected in case of a demolition plan (Sudana Singh and others v/s government of Delhi, 2010). The people of Jammu & Kashmir are floundering in a stringent clampdown. Since the pandemic outbreak, the clampdown has impinged children’s education without proper internet connectivity. Even though in Anuradha Basin v/s Union of India, the court ordered the restoration of the internet in Kashmir, government laxity ensured only 2G networks that only in ‘whitelisted’ regions. Rejecting a petition regarding 4G internet connectivity in Kashmir on 11th May 2020, the court transferred its obligation to scrutinize and unravel a malady having constitutional importance to an executive committee. Article 32 of the Indian constitution bestows every individual the right to approach SC to remedy the violation of fundamental rights and interdict the court to flinch from its constitutional duty. Simultaneously, proclaiming the right to the internet a fundamental right and flinching to restore internet connectivity reflects judicial abdication and breach of Article 32 of the Indian Constitution. Former CJI A.M Ahmadi said ‘when dereliction of obligations and gross violations of human rights are brought to the notice of SC, it cannot be expected to split hairs to maintain the ‘delicate balance’ of power between the wings of government; it must act and act in a positive manner that will provide relief, which is real and not illusory, to the parties who invoke their fundamental rights in invoking its jurisdiction’. In the same tune, when the migrant worker’s crisis reached its table, the court initially endorsed the spurious government claim that ‘no migrant workers in road and exodus of workers are just’. Rapid Action Force of Indian Railways later reported that at least 80 deaths in Shramik special trains. SC rejected the petition filed by Jagdeep Chookar seeking safety return of marooned workers during a nation-wide lockdown. Courts trajectory reveals a vile trivialization of cases that deserve brisk action and hastily hearing frivolous petitions like that of Arnab Goswami (a BJP stooge) that have nothing to do with the public interest. Callousness and insipidity of the apex court in handling the tribulations of the vulnerable tarnish its pedestal as the ‘most trusted public institution in the country’.
For the last many days, higher judiciary has been in the spotlight for its inimical weaponization of contempt law to quell democratic dissent. Suo moto proceedings by invoking contempt law were carried out by SC against the civil rights lawyer and activist Prashant Bhushan for his bona fide expression of discontent on the judicial conduct of the last four CJI. Prashant Bhushan accused the last four CJI for the destruction of democracy without a ‘declared emergency’. ‘The supreme court has lowered its dignity in the eyes of the ordinary persons by convicting civil rights lawyer Prashant Bhushan for criminal contempt’, says Campaign for Judicial Accountability and Reforms. In 2010, the contempt law was imposed on Shanti Bhushan, who has a stupendous record as law minister in the Janata regime for quashing Indira’s draconian law, for describing eight CJI as ‘corrupt’. Recently, Justice S.M Subramaniam wrote a letter to Chief Justice of Madras High Court prompting to initiate contempt proceeding against actor Surya for his comment on SC’s NEET verdict. The actor had said ‘with the fear of life due to corona scare, the court which dispenses justice via video conferencing orders students to fearlessly go and take exams’. Any institution in a democracy is open to ‘rational animadversion’. Citing the actor’s remarks, the court stated ‘it is not the job of a constitutional court to use a sledgehammer for the avoidance of something which can be perceived to be not capable of even being propped as a contempt, much less debate to the level of criminal contempt’. Constitutional courts indulging in petty acts of ‘witch-hunting’ are incompatible to the entrenched principle of ‘judicial rectitude’. Is Indian democracy altering to a Kafkaesque state where the protector itself snatching the rights and mitigators itself facilitating transgressions?
Asunder to traditional problems like ‘astronomical backlogs’, a drift from judiciary ‘independence to capitulation’ is portentous. Judicial connivance in stifling democratic dissent and snubbing the insidious conversion of the constitution into ‘BJP manifesto’ corrupts its stature as ‘watchdog of Indian constitution’. Past mistakes are meant to rectify, not to repeat. Confronting an undeclared emergency dovetailed by noxious communalization drive, Indian democracy craves for a sturdy judiciary audacious to correct government wrongdoings. Present-day judges should imbibe and emulate the contributions of legal stalwarts like V.R Krishna Aiyar who revolutionized the Indian judiciary by launching people-friendly schemes like the legal-aid movement. Decriminalization of 377, right to privacy, etc. are some of the progressive changes pioneered by the Supreme Court. In 1985, legal aid scholars, Upendra Baxi wrote, ‘the Supreme Court of India at long last becoming, after thirty years of the republic, the Supreme Court for Indians’. Hence, the higher judiciary should reverse the pusillanimity to regain losing credibility and obviate an imminent majoritarian tyranny murdering the basic values of Indian democracy.
That unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country – Justice Jasti Chelameswar