In Shakti Vahini vs Union of India (supra) the Court observed, "Once a fundamental right is inherent in a person, intolerant groups cannot scuttle the right by leaning on any kind of philosophy, or self proclaimed elevation"
This being the settled Constitutional position, we may now ask whether the Supreme Court of late has been doing its solemn duty of protecting the rights of the people? It must be regrettably said it has not, rather the impression which has been created by its recent verdicts, orders and actions (including its inactions) is that it has, with some exceptions, largely surrendered before the political executive, instead of behaving like an independent organ of the state which it was expected to be. Consider the following :
1. In the article by one of us (Justice Katju) ‘The Ayodhya verdict is based on a strange feat of logic’ it has been stated that this disgraceful judgment will go down in the annals of Indian legal history in the same category as the shameful ADM Jabalpur vs Shivakant Shukla decision except that unlike the latter, in this one there is not a single courageous dissent.
In substance the Court has held that might is right. It is like a bully snatching a sandwich from a child in school, and the teacher giving a ‘balanced decision’ that the bully can keep the sandwich, and the child will be given a slice of bread as restitution.
2. The Supreme Court Collegium recommended Justice Akil Kureshi of the Bombay High Court to be appointed as Chief Justice of MP High Court. Instead of making the appointment, the Government sent the recommendation back to the Collegium, evidently because Justice Kureshi is a Muslim.
Justice Akil Kureshi
Thereafter the Collegium should have reiterated its recommendation, and then in view of the verdict in the Judges case the Government would have had to make the appointment, But instead, the Collegium disgraced itself by surrendering, and instead recommended his transfer as the C.J. of the much smaller Tripura High Court.
3. The Supreme Court Collegium had recommended the appointment of Gopal Subramaniam, an outstanding Senior Advocate of the Supreme Court, and former Solicitor General of India, as a Judge of the Supreme Court. But the Government objected as he had been a lawyer against BJP leader Amit Shah in the Sohrabuddin case. Instead of reiterating his name, the Supreme Collegium meekly surrendered.
4. After abrogating Article 370 of the Constitution on 5th August there has been a clampdown in Kashmir, many restrictions imposed e.g. ban on internet, curfews, etc and many political leaders including the 82 year old Dr Farooq Abdullah are still in detention.
Many petitions challenging the violation of the democratic rights of Kashmiris were filed in the Supreme Court, but the Court, like Bheeshma Pitamah who refused to intervene in the ‘cheer haran
’ of Draupadi, has turned a Nelson’s eye to the same. What then remains of the lofty doctrine proclaimed in Navtej Singh Johar
and Shakti Vahini
that when there is violation of fundamental rights the judiciary cannot remain a silent spectator?
5. In the case of the Bhima Koregaon accused and Prof Saibaba the Supreme Court should have quashed the prosecution using the Brandenburg test (relied on in Arup Bhuyan vs State of Assam, and Sri Indra Das vs State of Assam) but it did not even consider the same.
6. Abhijit Iyer Mitra should have clearly been granted bail in view of the decision of the celebrated Justice Krishna Iyer in State of Rajasthan vs Balchand that bail not jail is the normal rule, unless the accused is likely to abscond or tamper with the evidence, or was accused of a heinous crime. Abhijit had only made a satirical tweet, for which too he had promptly apologized. Yet his bail application was rejected, with a flippant and cruel remark by CJI Gogoi that the best place for him was in jail.
7. The brave police officer Sanjiv Bhat (in pic)
who gave an affidavit against Modi and his role in the massacre of Muslims in 2002 has been clearly victimised, and he should have been set free, but the Supreme Court refused to do justice in the matter.
8. Recently about 50 masked hooligans beat up students and teachers in JNU with the police apparently complicit, and about 30 persons were admitted to AIIMS, Delhi with serious injuries. The Supreme Court should have suo motu
issued notice to the concerned authorities, and taken the guilty to task, but again it turned a Nelson’s eye
9. The UP police brutally beat up the anti CAA protesters, and even entered some houses (probably all Muslims), beat up the inhabitants (including old people) and destroyed or looted property. Again, the Supreme Court took no notice, though this was widely reported in the media.
10. Within 72 hours of his reinstatement by the Supreme Court, the CBI Director Alok Verma was removed by a panel headed by Prime Minister Modi. The Supreme Court should have reinstated him, but did not do so.
11. Ever since the present government came to power there have been continuous attacks and victimization of Muslims e.g, by lynching, hate speeches, etc.
A former Union Minister even garlanded some alleged lynchers, and another Union Minister called them ‘haraamzadas’. Instead of taking strong action against the lynchers, often the family members of the victim are harassed e.g. Akhlaque’s family. Surely it is the duty of the judiciary to grant protection, but it rarely does anything except utter homilies.
12. There is frequent and arbitrary use of sedition and preventive detention laws against those who criticise the government, e.g. cartoonist Aseem Trivedi in Maharashtra, Prof Ambikesh Mahapatra of Jadavpur University in West Bengal, folk singer Kovan in Tamilnadu, and Kashmiri politicians like Farooq Abdullah and others under detention, which make the right to liberty in Article 21, illusory.
Unfortunately, the Supreme Court nowadays rarely interferes in this gross violation of this most precious of all rights (vide Md Sukur vs State of Assam
), although in one of its very first decisions, Romesh Thapar vs State of Madras
, delivered in 1950 only a few months after the Constitution came into force, it had held that in a democracy people had the right to criticise the government.
In the article ‘Farooq Abdullah detention : the Supreme Court is also on trial’ one of us (Justice Katju) has clearly said that the most important case in India today is not the Ayodhya appeal but the trial of the Supreme Court itself. We are afraid the people’s verdict is likely to go against the court unless it quickly recovers and resumes its role of guardian of the liberties and rights of the people.