The Supreme Court has made headlines because of its verdict holding senior advocate Prashant Bhushan guilty of contempt of court. Lately, the behaviour of this institution — once recognised as among the most prestigious judicial bodies in the world — has been seen as problematic on another count: The Court has ceased to confront the government. Over the last four years, none of its decisions has come as a major embarrassment for the government. For these two power centres to be on the same wavelength for such a long time is unprecedented — especially, after the period of tension between 2014 and 2016.
Almost immediately after assuming office, in 2014, the Narendra Modi government blocked the elevation of Gopal Subramanium as a judge of the apex court. Subramanium was the Court’s amicus curiae in the Sohrabuddin case in which current Home Minister Amit Shah was the prime accused. The government cleared the names of the three other candidates proposed by the collegium — Rohinton Nariman, Arun Mishra and A K Goel. The government’s decision attracted the criticism of the then Chief Justice R M Lodha. A month later, the Modi government introduced a bill to create the National Judicial Appointments Commission (NJAC), which would replace the Collegium system for appointing judges to high courts and the Supreme Court. The Commission would comprise the CJI, two senior judges and two “eminent personalities” selected by a committee comprising the CJI, the Prime Minister and the Leader of Opposition in the Lok Sabha. The NJAC Act was passed by Parliament in December 2014.
In October 2015, the SC struck down the NJAC Act, ruling that it would affect the independence of the judiciary vis-à-vis the executive — a decision in which Arun Jaitley, then Minister of Finance, saw “the tyranny of the unelected”. That was almost the last time the SC opposed the government in a major case. This, ironically, when the court burnished its reputation in the 1980s-90s with “judicial activism”.
After the 2014 blitzkrieg, came a long war of attrition. In order to show the world that it was open to a reform of the admittedly dysfunctional collegium system, the SC directed the government to propose a new memorandum of procedure (MoP) for appointments to the higher judiciary. The government seized this opportunity to upgrade its role in the process. The draft it sent to the Court allowed the government to reject any name recommended by the Collegium on grounds of national security and made it compulsory for the Collegium to justify its selection. The Collegium rejected these clauses and the MoP could never be finalised.
Meanwhile, the government was sitting on the appointments that the Collegium had recommended months ago — if not more. In early 2016, more than 40 per cent of posts in the high courts were vacant while the backlog of pending cases amounted to over four million. In April 2016, addressing the annual Conference of Chief Justices and Chief Ministers in the presence of PM Modi, then CJI T S Thakur broke down, saying that the Indian judiciary was too understaffed to fulfil its obligations — 170 proposals for appointments to the high courts were pending at that time. On November 11, 2016, the government returned 43 out of 77 names recommended by the Collegium for HC judges —the number of vacant posts had by then gone up to about 500.
CJI Thakur retired in January 2017 and after that, relations between the executive and the SC improved. Appointments and transfers ceased to be a problem because the Collegium, by and large, accepted the law ministry-orchestrated appointments and transfers, even when it had not proposed them or had suggested others, like in the cases of Justices Jayant Patel, Ramendra Jain, Basharat Ali Khan, Mohammad Mansoor, Mohammad Nizamuddin, Akil Kureshi and S Muralidhar to name a few.
In the same vein, the Court considered that the Aadhaar Bill could be passed as a Money Bill, validated the Electoral Bonds Act, and in the case of Special Judge Loya, as Gautam Bhatia puts it, it acted as “the Supreme Magistrate, the Supreme Investigating Officer, and the Supreme Additional Sessions Judge, the Court of First and Last Instance” — so much so that, finally, no additional investigation was ordered despite the many grey areas that remained. The SC also abstained from dealing with sensitive issues like the abolition of Article 370 or the Citizenship Amendment Act: By doing nothing, the judges do not take the risk of making mistakes. This modus operandi of the court, when applied to Aadhaar, created a fait accompli.
Commenting on the role of the apex court in maintaining checks and balances, the former judge, Madan Lokur, recently asked: “Has the last bastion fallen?” To respond, one needs to make sense of the trajectory. The non-confrontational attitude of the SC can possibly be explained by the arm wrestling of the years 2014-15. Some other variables need to be factored in. First, the court’s reluctance to question the government on contentious issues — from J&K to misuse of sedition law or the NRC — is disturbing. More so, when some of these are labelled by the BJP as its ideological projects.
Second, the manner in which the judiciary has addressed allegations against itself — Kalikho Pul or Prasad Education Trust or on sexual harassment — gives a handle to those in power. For, these allegations affect the moral authority of the judges, especially when they fail to apply the basic principle of natural justice by being judges in their own cause. Third, the independence of the judiciary is inevitably affected by the acceptance of post-retirement jobs.
In this context, in convicting Prashant Bhushan of contempt, the Court is trying to silence one of the few lawyers who have used the judicial arena to speak truth to power. In doing so, it indulges in judicial authoritarianism, an “ism” that becomes obvious, when, according to Lynne Henderson, a court’s jurisprudence appears “to manifest inflexibility, lack of compassion, and approval of oppression”.
Comments(1)
The Supreme Court of India's job is not that of an opposition political party ... nor is its job to create hurdles for the ruling party in implementing its program and policies towards the country's development . The elected lawmakers in Indian parliament fulfilled the election promises, by passing a number of very important legislation, as listed in this article, that are crucial to India's internal and external security. There is absolutely no reason for the Supreme Court of India to stand on the way, and scuttle the legislation, just because it does not suit the agenda and narrative of the leftist liberals ... The Supreme Court of India does not have to prove its credibility to anyone, nor does it need certificate of excellence from the leftist liberals, both within India and abroad. India has had a 60 years long history of the leftist liberals dominating and dictating the intellectual space, where no room for any counter narrative was allowed. The leftist liberal lobby continued to create pressure on the Judiciary, and influenced its ruling on important issues of national interests. The Congress party that was voted to power for nearly 60 years, has number of instances of abusing the Judiciary by appointing Judges with allegiance towards the party. Toppling elected State Governments became commonplace, with the Judiciary on its tow. The recently retired Chief Justice of Supreme Court, Ranjan Gogoi has openly discussed in the media, how the leftist constituency operate and create pressure on the Judiciary, to influence the Judges, and extract verdict of their liking. Some activist lawyers like Prashant Bhushan turned PIL (Public interest litigation) into a cottage industry. His blatant attempt to politicize the Rafale fighter deal, by approaching the court with allegation of corruption, just before the 2019 elections, fell flat due to lack of evidence, and rejected by the court. This one sided affair continued for such a long time that it became a habit for the leftist liberals, resulting in blatant intolerance towards the alternative ideology of the nationalist right. However, the people of India now have a much clearer view of this sordid affair, thanks to internet, social media and easy access to information. The days of leftist domination of the intellectual space in India is over. They can not dictate and impose their wishes on the academia, media and Judiciary any more ... !! ... Nor will the people of India allow the western media to meddle in India's internal affairs, and create pressure on India's institutions, through their Indian born, western based agents targeting the popularly elected nationalist Government in power.
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