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Mainstream, VOL LIV No 14 New Delhi March 26, 2016

Supreme Court Owes an Apology

Monday 28 March 2016, by Kuldip Nayar

The judiciary in India has a long way to go to retrieve its reputation. One judgment by the Allahabad High Court which said that dissent should be “protected” cannot rub off the stigma it acquired during the Emergency. This is still beyond my comprehension, even after some 35 years since the judgment was pronounced.

The judiciary caved in and upheld that Parliament could suspend the fundamental rights enshrined in the Constitution. Even the imposition of the Emergency was justified. Only one judge, Justice H.R. Khanna, gave the dissenting judgment but he was superseded. It is another matter that the country punished the then Prime Minister, Indira Gandhi, when she was ousted from power lock, stock and barrel after the elections were held. Similar was the fate of her son, Sanjay Gandhi, an extra-constitu-tional authority.

What disappoints me is that the Supreme Court has never passed a resolution or done anything to register its criticism against the judgment which gave the judiciary a bad name. Even now it is not too late. The Supreme Court has liberal judges on the Bench. They can still dilute the situation by passing a resolution that its predecessor bench was wrong in endorsing the Emergency.

At least the Narendra Modi Cabinet, with a liberal Law Minister in Arun Jaitley, should say sorry for the excesses committed by the earlier government during the Emergency. At that time, Indira Gandhi had detained one hundred thousand people without trial. The then Attorney General, Niren De, had argued in the Court that even the right to live was forfeited during the dark days of the Emergency.

There was so much fear that practically all lawyers in Delhi dared not to speak. A lawyer like Soli Sorabjee from Mumbai and V.M. Tharkunde from Delhi argued the habeas corpus petitions. My petition was argued by both and they had me released after three months in jail.

The two judges, Justice S. Rangarajan and Justice R.N. Aggarwal, were punished for having given the verdict. The first was transferred to Guwahati where people still remember him for his impartiality. The second was demoted and sent back to the Sessions Court. But this did not deter them and they carried on their work independently.

Probably, the pressure on the judges has lessened in recent years because of a vigilant media. But the worse is happening. Appoint-ments to the Benches are being made according to the wishes of the rulers. It began with the Congress Government at the Centre and has continued even during the Bharatiya Janata Party Government.

The process was really started by Indira Gandhi. She superseded three judges—Justices J.M. Shelat, K.S. Hegde and A.N. Grover—to appoint Justice A.N. Ray as the Chief Justice. She was unseated from Parliament and disqualified for poll malpractices for six years. Instead of accepting the verdict, she imposed the Emergency and amended the law itself.

The excesses she and Sanjay Gandhi committed during the Emergency may be a part of history. However, it is still remembered by not only those who suffered but also those who support democracy. It was the Janata Party which came to power after defeating Mrs Gandhi that changed the Constitution to make the imposition of the Emergency impossible. And Justice Khanna’s dissenting judgment—that the basic structure of the Constitution cannot be changed—was accepted as the norm. This has ensured the parliamentary system of governance and deterred every ruler since then not to tinker with the judiciary.

Ultimately, the independence of the judiciary depends upon the quality of judges and this is where I have begun to develop doubts. In the US, the biggest democracy, the Supreme Court is divided between the Republican judges and Democrats. But since the tenure of the judges is for a lifetime, the appointees of one party have risen above their old loyalties and become independent and impartial.

In India, we had the best of judges when the government appointed them. But now party politics is creeping in and at least in High Courts it is seen that the party in power has not appointed the best of lawyers but those who had owed allegiance to it. Even in the Supreme Court, some appointments come under the shadow of doubt.

Take the case of former Solicitor General Gopal Subramanium whose appointment to the Supreme Court was stalled by the Narendra Modi Government. Blaming the government for blocking his appointment, Subramanium said his “independence as a lawyer is causing apprehensions that I will not toe the line of the government. This factor has been decisive in refusing to appoint me.” He subsequently withdrew from the race.

In fact, it was at his instance that the Gujarat Police were forced to book a murder case in the Sohrabuddin fake encounter matter. Then when the prime witness, Tulsiram Prajapati, was liquidated under suspicious circumstances, Subramanium had recommended the transfer of the case to the CBI. Significantly, Subrama-nium also admitted that it was on his suggestion that the Supreme Court, while granting bail to accused Amit Shah, now the BJP President, had barred him from entering Gujarat.

When the story of Ishrat Jahan’s encounter case comes to light fully it would be apparent that politics had got mixed up with criminality. I do not want to apportion blame on one political party or the other, but there is an increasing tendency to politicise certain issues where a party member is arraigned before the Court.

The remark by the Allahabad High Court Chief Justice is telling. Justice C.J. Chandrachud, during the High Court’s anniversary function, said: “Law tends to follow precedents. But it must be kept in mind that administration of justice also necessarily involves interpretation of laws that may have been laid down ages ago, in accordance with contemporary needs and challenges.”

Ironically, things start from the Allahabad High Court. It changed the legal history when Indira Gandhi was unseated by it and it has now given a new lead to the judiciary. Probably, this is the time when Prime Minister Modi’s statement that outdated laws should be done away with is given a legal shape.

The author is a veteran journalist renowned not only in this country but also in our neighbouring states of Pakistan and Bangladesh where his columns are widely read. His website is www.kuldipnayar.com