Are SC judges false gods?

(Clockwise from left) Chief Justice of India D Y Chandrachud; Umar Khalid, a youth leader booked under UAPA; Mahesh Raut, an accused in the Bhima Koregaon case

Search the internet for the sentence: "I have full faith in the judiciary." You will come across pages after web pages with links to a variety of people publicly reposing their trust in the judiciary, certain that it would exonerate them of the charges the State falsely levelled against them, or annul laws trampling upon their rights, or even restore their governments toppled through defection.

Their faith in the judiciary resembles that of the devout in God.

The faith of the seekers of justice will have been shaken with the Supreme Court upholding, on December 11, the Modi government's 2019 decision to abrogate Article 370 of the Indian Constitution, which granted special status to Jammu and Kashmir. Few expected the Supreme Court to reverse the abrogation. But all hoped it would furnish legally and morally persuasive arguments in favour of the abrogation, and annul, at least, the demotion of Jammu and Kashmir from a state to a Union Territory.

The Supreme Court judgment is worrying because the Modi government abrogated Article 370 through two Presidential orders. The correct way of altering the Constitution, as jurist Fali S Nariman pointed out last week, was for the government to bring a bill to Parliament for amending Article 370 and getting it passed. Unsure of mustering the two-thirds majority required to pass an amendment bill in each House, the government chose to subvert the Constitution.

The five Supreme Court judges frowned upon the two Presidential orders as "backdoor amendments." Yet they unanimously endorsed an example of executive despotism.

The Modi government's decision to abrogate Article 370 was as momentous as Indira Gandhi's to nationalise 14 private banks in July 1969 and abolish, in May 1970, the privy purse system. The Supreme Court struck down both these decisions of Mrs Gandhi. Her government amended the Constitution to overturn the Supreme Court's judgments. Mrs Gandhi had her way in the end, but the Supreme Court demonstrated it was not going to meekly keel over.

It is hard to recall examples of the Supreme Court, in recent times, reading down laws the party in power enacted. The exception was the 99th Constitutional Amendment, which sought to constitute a judicial commission for appointing judges. The Supreme Court struck it down in 2015, saying it compromised the independence of the judiciary. Sadly, the Supreme Court has not shown the same zeal for protecting the rights of the individual as it showed in guarding its turf from executive encroachment through the 99th Amendment.

The reverse, in fact, has happened. For instance, the Supreme Court's interpretations of the Unlawful Activities (Prevention) Act and Prevention of Money-Laundering Act have made it immensely difficult for persons booked under them to secure bail.

Forget its perceived failure to annul constitutionally borderline laws, voices from within the legal fraternity have the people wonder whether the Supreme Court is insulated from political influence. In January 2018, four senior-most judges of the Supreme Court, in a press conference, expressed their misgivings over then CJI Dipak Misra, as the master of the roster, allocating cases in which the Modi government had stakes to a particular bench.

Five years later, the issue of allocation of cases to judges has resurfaced. Senior Supreme Court Advocate Dushyant Dave recently wrote to Chief Justice D Y Chandrachud expressing concerns over cases being taken away from the judges before whom these had been earlier listed and who had even issued notices to the respondents (read the Union government) for their response. These were then assigned to other benches. Dave desisted from citing the cases or naming the judges in his letter.

Courtesy journalist Saurav Das, we now know to which cases Dave may have been referring. In an investigative piece, Das identified as many as eight politically sensitive cases that were moved to the court of Justice Bela Trivedi in four months, in violation of the rules laid down in the 2017 Supreme Court handbook. The handbook says cases should be "retained" before the senior judge to whom they were first assigned and, in case of his/her unavailability, listed before a judge hearing a similar case.

I cite here two out of Das's eight examples. The bail case of Mahesh Raut, an accused in the Bhima Koregaon case, was listed, in September, before Justice Aniruddha Bose, who had earlier this year granted bail to Vernon Gonsalves and Arun Ferreira in the same case. Bose is sixth in the seniority list of Supreme Court judges, Trivedi sixteenth. Yet, two months later, Raut's case was shifted to Trivedi's court.

Likewise, the bail plea of Umar Khalid, the youth leader booked under the UAPA, is now in the court of Trivedi, after it was shifted from Justice A S Bopanna, who is seventh in the seniority list, to Bose. Trivedi was the law secretary in Gujarat when Narendra Modi was the chief minister there, Das pointed out in his piece.

The judgment on Article 370, Dave's letter and Das's story will make the seekers of justice wonder: ‘Are Supreme Court judges false gods?' This question will be partially answered with the impending Supreme Court judgment on electoral bonds.

The writer is a senior journalist.
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