OPERATION TAKE-OVER SUPREME COURT

After getting control of the Parliament, offices of the President, the Vice-President, the Election Commission and the Reserve Bank of India there has been a concerted attempt by the Hindutva rulers ...

हाइलाइट्स

There is no doubt that four judges of the Indian Supreme Court have made public an issue which constitutional experts, legal fraternity and social activists had been discussing in hush-hush manner in the last couple of years. The judges justified their action of making this issue public so that future generations may not blame them for not rising up to the occasion or they had sold their souls.

Shamsul Islam

After getting control of the Parliament, offices of the President, the Vice-President, the Election Commission and the Reserve Bank of India there has been a concerted attempt by the Hindutva rulers to take control of the judiciary specially the highest court of justice, the Supreme Court of India. In a stunning development the four senior-most judges of the Supreme Court, J. Chelameswar, Ranjan Gogoi (going to be the chief justice in October 2018), Madan B Lokur and Kurian Joseph held a press conference on January 12, 2018 in Delhi to let the nation know what was happening in the Supreme Court. According to an editorial comment in The Indian Express it was unprecedented in India’s democracy that these judges stepped out of the courtroom,

into the spotlight to declare unreservedly that 'things are not in order', and in spelling out in the open their grievances with the functioning of the justice delivery system, and the independence of the high courts, and more specifically, their complaints against the conduct of the CJI in his role of 'master of the roster', the four judges have posed enormously serious question marks against the institution they are an invaluable part of. Given the judiciary’s critical role in the constitutional mosaic, this is a moment of reckoning for other institutions as well, the executive and the legislature. There is no going back to business as usual from here. Much will depend on whether, and how, in the coming days, India’s institutions choose to respond to the crisis bared on Friday to public view. [http://indianexpress.com/article/india/judiciary-crisis-dipak-misra-chief-justice-govt-vs-supreme-court-is-now-judges-vs-cji-5022462/  ]

It was no personal fight but forecast of a serious danger "when the executive seems emboldened by a decisive electoral mandate to subdue other institutions". The four judges also released a joint letter to the chief justice of India, Dipak Mishra, in which serious concerns were expressed about partiality of the chief justice in many cases. It was made clear that sensitive issues in which rulers had stakes were being sent to judges prone to state pressure. The letter specially referred to the shocking fact that

cases having far-reaching consequences for the nation and the institution had been assigned by the chief justice of this court selectively to the benches ‘of their preference’.

Faizan Mustafa, a noted constitutional expert in a story titled ' Govt vs Supreme Court is now Judges vs CJI' quoted Justice V D Tulzapurkar, an eminent retired judge of the Supreme Court who had said that “sycophantic Chief Justices "were a threat to the independence of the judiciary because they could easily pack the court or withdraw cases from one bench to another of course with ulterior motives. [http://indianexpress.com/article/india/judiciary-crisis-dipak-misra-chief-justice-govt-vs-supreme-court-is-now-judges-vs-cji-5022462/]

According to Mustafa, "It is indeed the worst crisis of our judicial history and the entire legal fraternity is in shock with such divisions within the collegium". [Ibid.] The aggrieved judges "without giving any concrete details they repeatedly referred to a 'particular case' and 'particular manner' in which it was handled". [Ibid.]  

In fact, the issue of chief justice's authority to decide the roster was in news since November last when a two-judge Bench headed by Justice Chelameswar referred a petition alleging bribing of judges to procure favourable orders in medical college admissions to a Constitution Bench of the top five judges. Within a day, another Constitution Bench headed by chief justice Misra effectively overturned it, asserting that he was the “master of the roster”. [http://www.tribuneindia.com/news/editorials/a-judicial-mutiny/527598.html]

According to the legal correspondent of The Guardian,

Another case cited by the four justices during the press conference was a request for an independent investigation into the death of judge BH Loya, who was overseeing a case involving murder allegations against Amit Shah, a leading figure in the ruling Bharatiya Janata party (BJP). Media reports in recent months have raised suspicions over Loya’s death.

[https://www.theguardian.com/world/2018/jan/12/india-supreme-court-judges-integrity-dipak-misra]

It is true that son of the deceased judge Loya came out with the statement that he and his family did not find any wrong doing in judge's death but it is feared that the family may be under some kind of pressure.

There is no doubt that four judges of the Indian Supreme Court have made public an issue which constitutional experts, legal fraternity and social activists had been discussing in hush-hush manner in the last couple of years. The judges justified their action of making this issue public so that future generations may not blame them for not rising up to the occasion or they had sold their souls. As was expected RSS decried these judges through one of its lesser known leaders, J Nandakumar, Akhil Bharatiya Sah Boudhik Pramukh of the RSS (All India co-chief of the RSS intellectual body). In a Facebook post on January 13 (2018), he slammed the four judges for “poisoning the waters”. He went on to declare that four judges were behind a “a perfect political conspiracy” at “critical timing” and “they have done is unforgivable”. [http://indianexpress.com/article/india/supreme-court-crisis-see-a-political-conspiracy-what-judges-did-is-unforgivable-says-senior-rss-leader-j-nandakumar-5026300/ ]

The Hindutva zealots were more strident on social media in denigrating and abusing these judges. So far the final script has not been written but Hindutva take-over is facing resistance from within the Supreme Court: Guardian of the Indian Constitution. It provides a ray of hope that democratic-secular India will continue to exist for the time being.

January 16, 2018

 

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