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Congress and the judicial chokehold

When cases go against it, the party tends to try and leverage unfair advantage in judiciary

Written by Hitesh Jain |
Updated: January 16, 2019 6:40:45 am
Congress and the judicial chokehold There are several instances where the Congress party has pushed for judges who are not only close to the family but are an integral part of the carefully nurtured ecosystem.

The Supreme Court gave an unambiguous verdict on the Rafale deal. The SC said that it is satisfied that there is no occasion to doubt the process, nor is there a case to be made of commercial favouritism. Yet, Congress President Rahul Gandhi, disregarding the Court, continues to trade in falsehoods.

The brazen disrespect of the highest court of the land by the Congress is not new. The party, in its conduct throughout the history of independent India, has considered the judiciary to be just another institution that can be bent according to the whims and fancies of the “high command” or the “family”.

Such conduct is reminiscent of the time when judicial appointments were made in accordance with the wishes of Indira Gandhi. The norm of independent judiciary was scuttled when Indira Gandhi appointed the person of her choice as the chief justice of the Supreme Court, bypassing three senior judges — Justices Shelat, Hegde and Grover. The three also happened to be the ones who had ruled on the Kesavananda Bharati case, not to the liking of Indira Gandhi.

Congress leader Mohan Kumaramangalam had defended Indira Gandhi’s move to supersede the three senior judges, saying that it is not just the skill or integrity that matters but also “the philosophy and outlook of the judge”.

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The imposition of Emergency was an act of defiance against the Allahabad HC judgement that ruled against her for electoral malpractices. Justice Jagmohan Lal Sinha is said to have received a phone call saying his wife should not fast on Karva Chauth if he indicts Indira Gandhi. Sinha’s reply, so goes the anecdote, was that his wife had expired a few months ago.

Nowadays, the threats have become subtler, but they are equally devastating.

Justice H R Khanna was punished by Indira Gandhi for being the lone judge to dissent against the order that suspended the fundamental right to life during Emergency. He was superseded for the post of the CJI. However, Justice M H Beg, who concurred with Indira Gandhi on suspending fundamental rights, not only went on to become the chief justice of India but, on retirement, was made the director of National Herald, a “newspaper” wholly owned by the Congress party.

The Congress party calling for the impeachment of Chief Justice Dipak Misra, recently, is a reminder of the extent it can go to if the judiciary does not bend according to its wishes. It seemed like a warning for other judges to go slow on the cases involving the Gandhis, or otherwise, it might get difficult for them to carry on.

There are several instances where the Congress party has pushed for judges who are not only close to the family but are an integral part of the carefully nurtured ecosystem. An example of the Congress’s disdain for judicial independence is reflected in the elevation of a Congress MP, Justice Baharul Islam, first as a judge of the Guwahati HC, then as a Supreme Court judge. Islam, a Congress MP in Rajya Sabha, resigned from his seat to become the judge of the Guwahati HC in 1972. Though he retired in 1980, he was sent to the Supreme Court as a judge once Indira Gandhi regained power. He went on to absolve the chief minister of Bihar, Jagannath Mishra, in the urban cooperative bank scandal. He resigned thereafter, only to be made a Rajya Sabha MP again.

Recently, Justice Abhay Thipsay, after his retirement, joined the Congress party. Among the cases he judged in his career, there were some contentious ones such as the Best Bakery case and the Sohrabuddin encounter case. His media statements around these cases were controversial, too. Those who are besmirching Justice Sikri today on unfounded charges may like to reflect on this past as well.

Recently, a single-member bench of the Calcutta HC had said that the BJP was well within its rights to conduct rath yatras in West Bengal, in response to the state government denying permission for it. However, later, a two-member bench of then chief justice Debasish Kargupta and Justice Shampa Sarkar, quashed the single bench order, effectively barring BJP from conducting rath yatras in the state. Given that chief justice Kargupta retired shortly after that, were there questions raised then, in the way questions are being raised against Justice Sikri now?

A trend of slyly tarnishing the judiciary as “compromised” when cases do not go in Congress’s favour is once again emerging. Judges who do not comply are attacked, threatened and browbeaten. The country must rise against the Congress “family” before it destroys every institution in order to survive.

(The writer is a senior lawyer based in Mumbai and managing partner, Parinam Law Associates)

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