The framers of the Indian Constitution reposed their faith in the judiciary as the custodian of the Constitution and protector of fundamental rights of the citizens. But since Narendra Modi took over the reins of government, a disgruntled “secular brigade” has been selectively targeting the country’s institutions, including the Supreme Court. It is alleged by Pratap Bhanu Mehta (‘Their Lordships & Masters’, IE, November 18) that the SC is slipping into “judicial barbarism”. Many like me fail to agree with this selective and unfair criticism. The author conveniently omits important facts and facets of law to paint a gloomy picture of the judiciary, which remains the most venerated institution of the country.
The first charge made is that “the court has refused to do timely hearings of cases that go to the heart of the institutional integrity of a democracy”. The author cites the example of the electoral bonds case. Why does he not cite cases directly relating to personal liberty like the Prashant Bhushan case and the case of journalist Vinod Dua? Are those not reflective of the fact that the Supreme Court has always come to the rescue of citizens? Not only did these individuals get an early and effective hearing but also relief from the court. Both had criticised the government. Why does the author not make a mention of historic verdicts by the SC such as when nine judges held that the right to privacy is a fundamental right or when it held that the CJI is a public authority under the RTI Act?
The second criticism made by the author has been regarding the action taken by the investigating agency in the Elgar Parishad case, wherein several arrests were made after careful consideration of the available evidence. In the article, the Supreme Court has been blamed for denying bail to Sudha Bharadwaj, who has been hailed as a “patriot”. The SC, while hearing Bharadwaj’s bail plea, had rightly observed that her bail plea was pending in the high court. The court then said, “either you withdraw it or we will dismiss it” and suggested that a regular bail plea could be filed. The plea was then withdrawn.
Anand Teltumbde has been eulogised as a thinker and the charge that he was not granted a hearing or relief is also misconceived. In 2018, Teltumbde was granted interim protection from arrest by the Bombay High Court. Subsequently in March, the SC observed, “since the protection has been enjoyed by the petitioners approximately for one-and-a-half years, three weeks’ time from today is granted to them to surrender”. Thus, it is evident that Teltumbde and Gautam Navlakha got relief from the Supreme Court.
However, they failed to comply with the order and were again granted a week to surrender on April 8. The SC observed, “though we expected that the accused would surrender, honouring the order of this court, they have not done so. We are told that in Bombay, the courts are functioning. It would have been appropriate for the accused to surrender as the courts are open and not closed. However, since the petitioners have enjoyed the protection for long, by way of a last opportunity, we extend the time granted to surrender for one week. We make it clear that there shall not be any further extension of time.”
The Supreme Court evidently heard the parties and extended their interim protection from arrest. A judiciary slipping into “judicial barbarism” will not grant such reliefs to people accused of serious crimes. Umar Khalid has been portrayed as a young student whereas the fact is that he is being probed for his role in the Delhi riots. The charges against him are also very serious, as he allegedly tried to incite violence during the Delhi riots, which cost more than 50 lives.
The third charge he makes against the judiciary is scurrilous. He states in the context of “love jihad”, that “the judiciary abets legitimising this newest assault on liberty”. Mehta conveniently omitted the fact that the Supreme Court in Shafin Jahan v. Ashokan K M (Hadiya case) observed that Hadiya, being a 24-year-old adult, had the power to make her own decisions, and the court could not compel her to go to her father or husband against her will. Was the honourable Supreme Court not protecting the personal liberty of an individual irrespective of her caste, religion or creed, or was that judicial barbarism?
The fourth charge that the author makes against the incumbent Chief Justice of India is that he has been selective in his approach and cites the example of Arnab Goswami and an accused journalist charged under serious provisions of the UAPA Act. Why doesn’t the author mention that in Goswami’s case, which prima facie appears to be a case of malafide prosecution, Goswami approached the trial court first, then the high court and only after his petition was dismissed by the HC, did he approach the Supreme Court like any other citizen?
In the case of the accused journalist, the charges are very serious in nature and his matter is pending before the Allahabad High Court. The Supreme Court rightly remarked that the accused should pursue his remedy before the high court. Any lawyer will testify that this is the regular practice as per procedure followed in the Supreme Court.
The foregoing facts make it amply clear that it is not the judiciary which is slipping into “judicial barbarism”, but it is a group of disgruntled individuals that suffers from selective outrage syndrome. In this case, the criticism of the judiciary stems not from facts or evidence but from ideological inclination and utter dislike of particular political leaders.
This article first appeared in the print edition on November 21, 2020 under the title ‘Supremely injudicious’. The writer is a senior advocate and national spokesperson of the BJP
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