Connect with us

Opinion

It is now Judges vs CJI

Avatar

Published

🕒

on

IST

Justice V D Tulzapurkar, an eminent retired judge of the Supreme Court, had observed 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. “The Chief Justice is a man with all the failings, all the sentiments and all the prejudices which, we as common people have,” B R Ambedkar had said in the Constituent Assembly, opposing giving the Chief Justice veto power in appointing judges.

In the National Judicial Appointments Commission (NJAC) judgment, four judges of the Supreme Court struck down the Modi government’s first major legislative initiative on grounds of compromising the “primacy of Chief Justice’s opinion” in the appointment of judges of the Supreme Court and high courts. The lone dissent was authored by Justice J Chelameswar.

With four senior judges now questioning the authority of the Chief Justice even in administering the court, things have come full circle. It is indeed the worst crisis of our judicial history and the entire legal fraternity is in shock with such divisions within the collegium. Decisions on appointment and transfer of judges may now come to a standstill.
The SC has faced similar moments of crisis in the past, but those were confrontations between the government and the court. In the 1967 Golaknath case, the SC in a 6:5 ruling asserted itself and denied Parliament power to amend the Constitution and fundamental rights. In the 1972 Keshvanand Bharti case, the SC by a 7:6 majority subjected Parliament’s power to amend the constitution only to the doctrine of “basic structure”. Thus Parliament cannot anymore change the basic structure of the Constitution.

 

Soon after this order, the Indira Gandhi government appointed Justice A N Ray, a committed judge, as the new CJI superseding three judges, who immediately resigned in protest.

On May 12, 1973, M Kumaramangalam, Indira Gandhi’s cabinet colleague, in a speech to Parliament defended Ray’s appointment as CJI: “We had to take into account what was a judge’s basic outlook on life… Was it not right to take all these aspects into consideration? Was it not right to think in terms of more suitable relationship between the court and the government?

As CJI, Justice Ray did try to overturn Keshavanand Bharti. After two days of tense hearing, the review bench was abruptly dissolved after it realised that no one had approached the court with a review petition.

Then came the 1976 ADM Jabalpur case where four judges held that during Emergency a citizen has no remedy against illegal arrest due to suspension of right to life and personal liberty under Article 21. Justice H R Khanna was the lone dissenter, and was soon superseded by another committed judge, Justice Hamidullah Beg. Khanna resigned. This judgment was recently overruled in the privacy case.

But the current crisis is of different magnitude as the four judges have raised some very pertinent issues about the administrative functions of the CJI. So it is now judges versus CJI. It is a fight within. The integrity of the apex court is now at its lowest ebb and it will take years to regain people’s confidence.

To the credit of the four judges who called a press conference on Friday — J Chelameswar, RanjanGogoi, M B Lokur and Kurian Joseph — they did not say much except this is an “extraordinary” event in the judicial history and that circumstances compelled them to reach out in order to discharge their “debt to nation” as the credibility of the highest judiciary was at stake. They repeatedly asserted that they did not want to “politicise the issue” and were not seeking any action against the CJI. They only made public a seven-page letter jointly written to the CJI recently.

They did say that all is not well with the administration of the court for the last two months and they did make sincere efforts in sharing their concerns with the CJI and did everything within their powers to persuade him to take necessary remedial measures. But their efforts were in vain and therefore, reluctantly, they were sharing their pain and disappointment with the people, the ultimate sovereign.

They also said that they are convinced that unless the SC’s independence and integrity is preserved , democracy would not survive as an independent judiciary is the hallmark of a successful democracy. They also justified their strange action of reaching out to people due to the fear that future generations of so called “wise men” may blame them for not rising up to the occasion. They also asserted that they have not sold their souls.

Without giving any concrete details they repeatedly referred to a “particular case” and “particular manner” in which it was handled. Since Friday, the SC was to hear the matter of Judge B H Loya’s mysterious death which has been assigned to a relatively junior judge ignoring several senior judges. It seems they were probably referring to this high-profile case. These senior judges did meet the CJI Friday morning but nothing came of this meeting and out of sheer desperation or possibly in a knee-jerk reaction, on a working day, they decided to leave their judicial work and reach out to the nation.

It seems at least two judges, in response to a pointed question about Judge Loya’s case being the “particular case”, nodded their head in agreement. In a welcome order, the SC bench hearing the matter Friday sought Loya’s autopsy report.

The following core issues were raised in this letter:

BENCH CONSTITUTION

They did acknowledge the power of the CJI as master of the court’s roster to ensure disciplined and efficient transaction of the business of the court but pointed out that there were established conventions which have not been adhered to lately in some sensitive matters. They explicitly asserted that master of roster does not in any way mean “recognition of any superior authority, legal or factual of the Chief Justice over his colleagues”.

The letter went on to boldly state that “Chief Justice is only the first amongst the equals — nothing more or nothing less.” The letter also said that details of bench formations are deliberately withheld to avoid embarrassment to the court. The most damaging statement of the letter is “there have been instances where 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’ without any rational basis for such assignment. This must be guarded against at all cost.” The underlining of the last sentence shows bench hunting is the central issue.

Lately, bench formation in the SC has been against the text of the Constitution. The Constitution says a constitutional issue shall be heard only by a five-judge bench but recently a number of two- or three-judge benches have heard and decided matters involving issues of constitutional interpretation.

DELAY IN MoP

The judges also took notice of the strange order of October 27, 2017, passed by a two-judge bench of Justice A K Goel and Justice U ULalit on the delay in the finalisation of the MoP on the appointment of superior judges. Since the NJAC matter was heard by a constitution bench, this matter should have ideally been given to the same bench as with the exception of Justice Khehar, the other four judges are still available. The judges also made an interesting point in stating that since the MoP was finalised with extensive discussions within the collegium as per the NJAC decision of October 16,2016, and was sent to the government by the then Chief Justice J S Khehar in March, 2017, the government’s silence indicated it has accepted it and therefore reopening this issue by the two-judge bench was not proper. The government will not be happy with this interpretation of its silence.

They also said that in the contempt matter of Justice C S Karnan on July 4, 2017, none of the seven judges raised the issue of MoP though two judges did raise the issue of need to evolve methods of judicial accountability other than impeachment. As a matter of fact, in Indian history no judge has so far been impeached for “misconduct or proved misbehaviour”. These are the only grounds on which judges can be impeached.

Towards the end of the letter, the four judges have said that once the CJI takes corrective measures about this two-judge bench order in the R P Luthra case on the MoP, they will apprise him of other similar judicial orders which “require to be similarly dealt”. As a matter of principle, judges are not supposed to comment on the judicial order of brother judges, but this is an unprecedented moment.

Most probably there is no truth in the allegations against CJI but with this press conference, people’s confidence in the judicial system has now reached rock bottom and the SC is suffering from a serious crises of legitimacy.

In a rule-of-law-based legal system, no one including the CJI is above law. The CJI does have the power to form benches but this power is to be exercised judiciously, not arbitrarily. Arbitrariness is antithesis to rule of law and constitutionalism. The SC itself has come down heavily on litigants on of “bench hunting”. It is difficult to believe the CJI himself is doing it.

Most probably there is no truth in the allegations against CJI but with this press conference, people’s confidence in the judicial system has now reached rock bottom and the SC is suffering from a serious crises of legitimacy.

The government has refused to intervene and termed it an internal matter of the judiciary. One hopes that judges will sit together and amicably resolve this crisis. Let the CJI demonstrate his leadership qualities which he has in abundance to take brother judges along. The CJI should use this opportunity to bring in judicial discipline. In a number of cases, smaller benches have overruled decisions of larger benches.

Judges must realise that the government may use this crisis to have greater say in judicial appointments and transfers. It may come up with another version of NJAC. Whether these judges have strengthened or destroyed the judiciary, only time will tell.

(Indian Express)


Advertisement
Loading...
Comments

Opinion

Not in the Mahatma’s name

The Kashmir Monitor

Published

on

By Apoorvanand

The recent uproar over the glorification of Mahatma Gandhi’s assassin, NathuramGodse, by the BharatiyaJanata Party’s Bhopal candidate Pragya Singh Thakur has forced her party to tick her off. It should be a solace for us that there is at least one non-negotiable in Indian politics, that the political cost of the celebration of the murder of the Mahatma is formidably high! But now we would be told to let the matter rest as she has been chided even by her mentors.

Let us look at the implication of this approach, that Ms. Thakur, sans this statement, should be acceptable to us as a potential representative in Parliament. She continues to be the ‘symbol of Hinduism’, as she claimed Prime Minister NarendraModi had said of her. Our satisfaction over the condemnation of Ms. Thakur makes us forget that she is being audaciously presented as the most fitting answer to secular politics, which holds that a person accused of attacks on Muslims cannot be a people’s representative in India.

 

The idea that a Hindu can never indulge in a terror act is, in fact, another way of saying that terror acts are always committed by non-Hindus. Or, by Pakistan, which for BJP leaders is a proxy for Muslims. Union Home Minister Rajnath Singh, while talking about the Samjhauta Express blast case acquittals, claimed that it was unimaginable to accept that Hindus could be involved in such acts, and that he believed that in all such crimes there was the hand of Pakistan. A crime has been committed, and since the Hindu suspects cannot (being Hindus) do it, it can only be Muslims even if they are not caught — this is the underlying assumption.

It is this theory which is being thrown at us by the BJP by presenting Ms. Thakur as its choice for the electorate of Bhopal. It has another sinister aspect. She was selected knowing well that she could not be a choice for Muslims. Her selection is therefore a message to Muslims that by not voting for her, they disregard the sentiments of Hindus, thus showing intolerance towards the majority.

By supporting her, the ‘symbol of Hinduism’, they have a chance to endear themselves to the Hindus. If they don’t, they would always be a suspect.

This argument is not new. Many pundits, while accepting that Mr.Modi was a divisive figure, urged Indians to choose him as he was the best bet for the economic development of India. So, can Muslims be so sectarian as to think only about themselves while the greater national interest is at stake?

The swift and determined move by the BJP to reject her statement on Godse is a clever ploy to make this issue irrelevant while judging her. It is as if we are asked to judge Godse, setting aside the act of murder of Gandhi by him. There are ‘respectable’ people who feel that Godse spoilt his case by murdering the Mahatma. They regret this folly as they believe that there was strong merit in his ideological stance. According to them, he rightly opposed the Muslim appeasement of Gandhi, his anger at the dangerous friendliness of Gandhi towards Pakistan is correct, and his impatience with the unwise and impractical pacifism of Gandhi is to be understood if we want to make India strong.

We are asked to understand that there was a reason Godse was forced to kill Gandhi. We are asked to not treat him as a simple criminal. He was driven by high ideas. To make him a man of ideas, he is constantly humanised. We have seen over the years people talking about his childhood, his education, his editorship. Gandhi must have done something really horrible to provoke a thoughtful human being to turn into an assassin. If anything, they imply, he was a just assassin!

So, we are asked to move away from the trivia, that is the act of the murder, to the substantive, the issues raised by Nathuram in his ‘brave defence’ in the court, which had moved people to tears even then.

The RashtriyaSwayamsevakSangh (RSS), unlike the Islamic State and the Maoists, understands it well that an individual and identifiable act of violence makes it abhorrent and repulsive for the masses, whereas anonymous acts of violence are always more palatable. It was therefore important for Savarkar to distance himself from his disciple, Godse, to remain respectable. For the RSS it was necessary to disown Godse to be able to keep working on the majoritarian ideas he shared with or had learnt from Savarkar and the RSS. No known RSS hand soils his hands with blood; yet it is the politics of the RSS, not at all different from Godse’s, which makes blood flow.

Gandhi had said again and again that it would be better for him to die if India were to become inhospitable to Muslims. He was talking to those who were objecting to the recitation from the Koran at his prayer meetings. Death he could accept but not the narrowing of his heart! Neither bowing to threats or force! In the same invocation, he said, if you ask me to recite the Gita at gun point, I would refuse to obey you.

Gandhi told his audience, your heart is also large. Don’t constrict it. It is this challenge which needs to be accepted. It requires immense bravery of intelligence and humanity to be able to hear Gandhi. This intelligence would tell us that the distancing from the murder of the Mahatma by the co-travellers of Godse is in fact a strategy to enlarge the space for majoritarian ideas and draw more and more Hindus towards them, thus making Gandhi irrelevant while keeping his facade decorated.

Continue Reading

Opinion

Why I want Pragya Thakur to win

The Kashmir Monitor

Published

on

By Saba Naqvi

Regardless of whether NarendraModi remains Prime Minister or not I want terror accused Pragya Thakur to win from Bhopal. The esteemed leadership of India’s pre-eminent political party chose a terror accused as a candidate and they must endure her tenure as MP.

Pragya may be a poisonous vendor of hate and violence but she is not a hypocrite. Ever since she spoke her mind on describing NathuramGodse, the individual who shot MK Gandhi to death, as a patriot, the BJP national leadership has claimed to be disturbed. The Prime Minister spoke up after her statement, saying, he would never forgive her for what she had said and the party stated that it had initiated disciplinary action against her.

 

But by the time the party took this position, many members of the BJP had come up with twisted arguments somehow justifying Pragya’s validation of the assassin of a figure many revere as a Mahatma or Great Soul. Party members exposed their own problematic ideological heritage that included non-participation in the freedom movement led by Gandhi. Some of them could not help but reveal their own natural impulse to drop the veneer of falsehood and come clean on how they do indeed believe that Godse was a patriot despite having killed Gandhi.

The Godse remark in just two days exposed the ideological underbelly of the ruling party that does indeed have members who believe that Gandhi was a villain who loved Muslims and Pakistan. That’s why Godse, by his own account in a famous trial, shot him. A must-read for those who wish to engage with this debate is the book titled “The Men Who Killed Gandhi” by ManoharMalgonkar.

Seventy-one years after that crime on January 30, 1948, we have come to the point where a candidate contesting in an election for Parliament embraces the Godse world view. What’s more, a member of Modi’s council of ministers, AnantkumarHegde, endorsed her position. The MP from Karnataka had earlier kicked up a storm when he had said that “we are here to change the Constitution”. Yes, the same Constitution he took an oath to protect.

Hegde’s also received a show-cause notice to explain his position and on May 17 BJP president Amit Shah said the party’s disciplinary committee would submit a report on the matter in 10 days, after the election verdict, that is. There was more: the BJP media cell chief in Madhya Pradesh, the state from where Pragya is contesting, was brazen enough to say that Gandhi was the father of the nation of Pakistan. The BJP suspended him.

So how do we read the ideological contortions ever since Pragya uttered the “Godse is a patriot” words? One could say that the BJP is trying to occupy the space of both extreme and moderate in a national ideological pendulum that has shifted right-wards. It’s not a bad ploy—the ideological family plays to the more core beliefs, that are to be revealed step by step, and just in case some voters find them unpalatable, there are the “reasonable” elements as well.

And, voila! Modi becomes a moderate who is being stern with the fringe! That is a useful projection at a time when there is the possibility of needing some allies post-23 May. The BJP has made this ideological journey before, of being all things to all men. Earlier, former Prime Minister AtalBihari Vajpayee was offered up as the moderate to LK Advani, the architect of the Ram temple movement, who brought the BJP to national prominence. Today Modi today is the moderate who is speaking up against the hardliners, who are called “fringe” by those who believe it’s all part of a great national purpose.

It’s not. The “fringe” has been mainstream for some years now. Much before Pragya was presented to the nation as a candidate for parliament, the BJP leadership chose an unabashed Muslim-hating monk of a religious order to be the chief minister of India’s most populous state. All these debates about ‘moderate’ and ‘hardliner’ are a farce designed to make the BJP constituency feel better about themselves. It’s part of the good cop/ bad cop tactic.

To conclude, therefore, I want a terror accused to win, just so that we can, as a nation, get a reality check on where we have landed up. And just in case someone wants to ask me about whether I am afraid, here is my reply: I am so certain about the courage of my convictions, that there is no fear, although I do feel some shame for those who have tied themselves into knots over something about which there should have been no ambiguity. Bring on Pragya and let’s see what happens next.

Continue Reading

Opinion

The ‘unpeople’ of India

The Kashmir Monitor

Published

on

By Abdul Khaliq

Muslims now have to live with the bleak truth that the most powerful political party and its ideological parent, with tentacles spread across the country, are pathologically hostile to Muslims.

I fear for our future as a secular, multicultural country that once celebrated a richness of culture and tradition. Till not long ago we affirmed our common humanity even as we celebrated our differences. Our nation represented diversity, kindness, compassion and a revulsion of extremist views. But, over time, our collective souls have been deadened by violence, deepening communal and caste divides and the most perverse thinking. The cosmopolitan spirit has been throttled by hyper nationalism, populism and a deep distrust of the liberal values of tolerance and inclusion. A creeping majoritarianism is spreading across the land.

 

In this overheated, protracted election season, Muslims are up against it, caught between a rock and a hard place. Theirs is an Orwellian world where they are the “unpeople”— a term coined by George Orwell in his scary masterpiece 1984, to define those whose names and existence had been erased because they had incurred “Big Brother’s” ire. Muslims now have to live with the bleak truth that the most powerful political party and its ideological parent, with tentacles spread across the country, are pathologically hostile to Muslims. What makes their plight infinitely worse, is the fact that even the major allegedly secular party has consigned Muslims to social invisibility. Can one trust a party that is afraid to even allude to the Muslims’ problems, let alone address them?

When the PM evoked the 1984 mass slaughter of Sikhs and quoted Rajiv Gandhi’s infamous justification about the inevitable effect of the falling of a big tree, why did the Congress president not hit back by recalling the 2002 Gujarat riots and Modi’s Newtonian observation justifying the killing of hundreds of Muslims as a reaction to an action? He refrained, not for any ethical reason, but simply for fear of being seen as empathetic to Muslims and their problems and of equating the two tragedies. Caught between the flagrant hostility of the right-wing and the fraudulent concern of the secular front, Muslims are India’s outcasts.

In today’s India, where all issues across the political spectrum are seen through the lens of identity politics, Muslims are vilified for their custom, dress and tradition. They are physically attacked for the food they eat, discriminated against in employment, housing, and even civic amenities, and, they are routinely victimised by law-enforcement authorities simply for being Muslim. Social media is awash with the most hateful, stereotypical portrayal of Muslims as terrorist sympathisers, baby producing factories and worse. Although India has been the home of Islam and its adherents for much more than a millennium, Muslims today are constantly pilloried about their loyalty to the nation.

All assessments about Muslims are universalised, in black and white and deeply problematic. In a conversation with two CRPF sub-inspectors who have recently returned from Kashmir (I did not reveal that I was Muslim), I was told that “these Muslims are a nuisance as even their women throw stones at us.” Please note that the stone-throwing by the disgruntled Kashmiris is perceived as a common trait of Muslims — all 190 million of them. Their other complaints were that Muslims support Pakistan and insist on eating only halal meat. When I asked how the civil unrest in Kashmir could be resolved, I got an answer that stunned me: “Make sure that the police force in Kashmir is recruited only from the Shia community and they will teach these Sunnis a lesson!” How well have the British taught us the art of “divide and rule” and of polarising communities! The conversation filled me with anguish at the gratuitous distrust and hatred for Muslims. The animosity runs deep and is expressed by ordinary citizens in a matter-of-fact tone that is unnerving.

I recall clearly the sense of cautious optimism among Muslims when NarendraModi assumed power in 2014. His swearing-in was a strikingly symbolic moment, epitomised by the presence of the Pakistani PM that signalled hope of rapprochement with Pakistan (Indian Muslims know through experience that their well-being is linked to this crucial relationship). The PM represented a more decisive polity that promised an equitable social order expressed most eloquently in the Socratic slogan, “Sabkasaathsabkavikas”. This slogan encapsulated this nation’s foremost mission of fostering social solidarity based on the principle that every human being matters. Minorities felt reassured by the PM’s emphatic assertion in 2015 that “my government will not allow any religious group, belonging to the majority or minority, to incite hatred against others, overtly or covertly.” He repeatedly made appeals to preserve our core values of diversity, tolerance and plurality, calling on Hindus and Muslims to work together to fight poverty instead of fighting one another. His stunning embrace of Nawaz Sharif on Christmas Day 2015 filled everyone with hope.

On the ground, however, India began witnessing a deepening cultural mutation as vigilante squads terrorised and lynched Muslims in the name of protecting the cow, launched “gharwapsi” campaigns that have all but ended the freedom to choose one’s faith and used “love jihad” to stifle any kind of solidarity between the two communities. Minorities began to believe that the present dispensation’s aim is to convert India into the Hindu Rashtra of Hindutva where Muslims and Christians would live as second-class citizens. The current election rhetoric has only exacerbated those fears. The BJP LokSabha candidate for Barabanki boasted that “NarendraModi has made attempts to break the morale of Muslims. Vote for Modi if you want to destroy the breed of Muslims.”

We are on the cusp of having a new government at the Centre. Opinion polls and the most reliable — the bookies — predict victory for the NDA, but with a reduced majority. Ironically, the return of Modi as PM is the best hope for peace within the country and the neighbourhood. Imran Khan was right when he said that only Modi could help resolve Kashmir. He is the only leader with the power to rein in the lunatics whose purpose in life is to polarise communities and engage in eternal war with Pakistan. In any case, the new government’s first task would be to combat the overpowering atmosphere of distrust and hate bedevilling society which constitutes the foremost threat to the nation, more so than terrorism. The creation of a truly secular society free of prejudice and discrimination must be the prime mission.

Continue Reading

Latest News

Latest News2 hours ago

No restrictions on Jammu-Srinagar highway from May 27

SRINAGAR, MAY 21, 2019: Following a review of the security situation in the state and of the requirement of security...

Latest News5 hours ago

Skeleton of man missing from nearly two years found in Handwara forests

Srinagar, May 21 : Locals on Tuesday found skeleton of a man missing for nearly two years at forests of...

Latest News5 hours ago

BJP bats for grant of reserved seats to people displaced from PaK

Jammu: The Jammu and Kashmir BJP unit Tuesday batted strongly for grant of seats reserved in the state assembly to...

Latest News6 hours ago

Gunfight rages in Shopian forest

Shopian, May 21 : An encounter broke out between forces and militants in south Kashmir’s Shopian forests this afternoon. Reports...

Latest News8 hours ago

India cuts off UN panel after Jammu & Kashmir report

New Delhi: Reacting angrily to a submission from the Geneva-based Human Rights Council (HRC) on the alleged violations in Jammu...

Latest News8 hours ago

Pak appoints Moin-ul-Haque as High Commissioner to India

ISLAMABAD: Pakistan on Monday appointed career diplomat Moin-ul-Haque as the High Commissioner to India. Pakistan Prime Minister Imran Khan on...

Latest News9 hours ago

Two policemen from J&K scale Mount Everest

Srinagar, May 21 Two policemen from Jammu and Kashmir have scaled the Mount Everest, police said on Tuesday. Union Home...

Latest News9 hours ago

Budgam Chopper crash: IAF commander removed

Srinagar: The Indian Air Force (IAF) has removed the Air Officer Commanding (AOC) Srinagar Air Base, the senior-most officer of...

Latest News9 hours ago

VIDEO| Restrictions imposed in Srinagar to prevent Eidgah Chalo march

Srinagar, May 21: Authorities have imposed restrictions in Srinagar on Tuesday to prevent a separatist-called commemoration march. The Hurriyat Conference...

Subscribe to The Kashmir Monitor via Email

Enter your email address to subscribe to The Kashmir Monitor and receive notifications of new stories by email.

Join 1,010,470 other subscribers

Archives

May 2019
M T W T F S S
« Apr    
 12345
6789101112
13141516171819
20212223242526
2728293031  
Advertisement