How the Judiciary was complicit in destroying the Indian Democracy?
Author: Mannan Khalil
PRASHANT BHUSHAN AND THE TWO TWEETS : A TALE OF CONTEMPT AND PREJUDICE
In the past few years, courts have frequently responded to criticism which exposes any lacunae of the judicial system, with the threat of contempt proceedings against the critic under the Court of Contempt Act 1971.
Recently, the initiation of contempt proceedings by the Supreme Court, suo motu, against lawyer-activist Prashant Bhushan for his tweets, is antagonizing and jarring at a time when issues of national importance - ineffectiveness of the state's response to the socio-economic distress of the citizens since the pandemic set off or the constitutional cases that have been on the desk for years including the pleas for release of detainees in Kashmir- have not received the level of attention of the Apex court that the two tweets prompted.
In his second tweet,on June 29, Bhushan posted a photograph of CJI S.A. Bobde sitting on a Harley Davidson motorcycle in Nagpur along with the following text:
"CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice!”
In many cases, especially the Shreya Singhal vs Union of India, Supreme Court signalled the beginning of re-interpreting speech acts and expanding the sanctity of Article 19 which guarantees the absolute right to freedom of expression. But, this untimely action exposes the inability of the courts to differentiate between maligning the court's repute and positive criticism and moreover, the alacrity with which it can invoke its contempt jurisdiction.
Ironically, skepticism has been expressed both by the judiciary and the law commission about the potential misuse of the sedition law by the Government as a tool to stem any sort of political dissent in the country and it suggested reading down the law to be criminalized only in cases of intimate incitement to cause public disorder. So, the question that persists in this logical sphere is: Why can't the Judiciary follow a similar suit and narrow down the utility of the contempt law to be only invoked when it obstructs justice through contemptuous speech-acts, as the same SC bench which issued notices to Mr. Bhushan observed while hearing the Rajasthan speaker's pleas that “Voice of dissent in a democracy cannot be shut down”
THE TROUBLING LEGACY OF MR. GOGOI AND THE ISSUE OF JUDGES ACCEPTING POST RETIREMENT JOBS
The nomination of the former Chief Justice of India, Mr. Ranjan Gogoi, as a member of Rajya Sabha by the ruling regime has led to a controversy which has ultimately undermined the independence of Judiciary, led to the denigration of its reputation and raised questions over the separation of powers between the three organs.
But what is more troubling is the fact that MR. Rajan Gogoi who was given the ticket by the BJP, was alleged for being the stooge of the government after the judgements he presided over gave a clean chit to the ruling party in Rafael deal, referred the Sabarimala matter to a larger bench and paved the way for the construction of Ram Mandir ; has opened the doors for debate on the selection process for the upper house based on nepotism and the wearing off the wedge between the Judiciary and the Executive.
However, it is undoubtedly wrong to put weight behind the criticism selectively targeted at one party, since these high profile appointments were being made since independence and continued during the tenures of successive governments. Two of these interesting cases were of :-
> Chief Justice Ranganath Misra who had given a clean chit to the Congress for its role in the 1984 anti-Sikh riots and not surprisingly, he was also elected as a member of the Congress to the Rajya Sabha.
> Justice Islam, during his tenure in the Supreme Court, delivered a judgment absolving then Bihar chief minister from the Congress in the urban cooperative bank case. He subsequently resigned from the Supreme Court to contest elections as a candidate of the Congress.
So, rather than debunking myths about the nomination of the Ex- CJI and selectively criticizing the present regime, a general debate should be held on whether the judges are eligible for post retirement executive jobs and if yes, then how to stop the seeds of nepotism from spreading in the aisles of the Apex court, as the law commission in its 14th report (1958) published much before this particular incident, clearly noted that:-
"The Government is a party in a large number of causes [cases] in the highest Court and the average citizen may well get the impression, that a judge who might look forward to being employed by the Government after his retirement, does not bring to bear on his work that detachment of outlook which is expected of a judge in cases in which Government is a party."
"We are clearly of the view that the practice has a tendency to affect the independence of the judges and should be discontinued," the Law Commission concluded.
THE CASE STUDY OF 'Anand Teltumbde'
In March 2020, as India was preparing to fight with the novel Coronavirus, the SC quashed the bail petition of Anand Teltumbde, one of India’s leading scholars, and asked him to surrender to the police in the second week of April.
It is pertinent to mention that he is an advocate for India’s most disadvantaged communities, including Dalits, once called “untouchables" and has a long history of fight against majoritarian politics which made him a target of the dominant muscular state policy. He has been on the forefront of condemning the communal politics unleashed in the recent years and has also compared the PM to Hitler. He also rightly accused the PM of being complicit in the anti-Muslim carnage of 2002 that left more than 1,000 people dead in the state of Gujarat, when he was the chief minister.
He was accused on the basis of some bogus allegations and teetering ground for supporting Naxalites and recognizing his efforts in upgrading the lives of Dalits, his unfair treatment by our judiciary is deterrent to the stature of the Indian institutions.
CONCLUSION
While almost every constitutional office in the country has been compromised in the past few years, it was the Supreme Court that gave hope to the common Indian that justice could prevail in the most turbulent times. Now the integrity of our judges and the character of the Indian judiciary has been called into question at a moment when we’re heading down an increasingly authoritarian path. The highest court in the land is meant to preserve and enforce the integrity of the Indian constitution. India’s vibrant democracy rests on its shoulders.
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