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Indian people’s collective consciousness needed to be stirred as the condition of Indian Judiciary is in jeopardy

Dated: September 20, 2020

                                                                                                                                       - By Megha Bhatia 

On September 19, 2020 a lecture on the “Decline of the Supreme Court: Forgotten freedoms and Eroded Rights” was delivered by AP Shah primarily where he said that in the face of an all-powerful executive, the situation of the Indian Judiciary was worrisome. The retired judge also said that the Supreme Court’s “proclivity to buckle in submission” when the Executive takes a stand has not gone unnoticed by anyone.

Though we are told that ADM Jabalpur’s dark chapter is buried after the Puttaswamy judgement overruled it, the emergency-like situation could be returning to haunt us, the judge opined during a webinar.

“We are told that in Puttaswamy case, the ghosts of ADM Jabalpur had been buried deep... but I fear these ghosts may have returned to haunt us again.”

Justice Shah referred to an Indian Express study which analysed ten recent Freedom of Speech and Expression cases in which the position of the Supreme Court on the granting of relief depended heavily on the executive’s position.

The Supreme Court is getting “more prickly” on the Freedom of Speech issues and is emerging as an intolerant institution, the former chairman of the Law Commission said. He cited the decision of the Court to convict Prashant Bhushan for contempt to support his claim.

The Judiciary’s decline started in 2014, according to Justice Shah, when the government of the BJP came to power in the Centre. That is when, he said, all the organisations charged with keeping the Executive responsible were systematically dismantled. “On paper, the Executive is held accountable to the people through the Legislature and to the Constitution and rule of law through the Judiciary and other institutions... this is all on paper. In India today, every institution designed to hold the Executive accountable is being systematically destroyed and the destruction began in 2014.”

A comparison with the Indira Gandhi period can be drawn with an overpowering executive and a judiciary that seldom asks questions about it, Justice Shah implied. He added that in issues where the Executive finds interest in “undermining the rights of the people in order to further its political agenda, we find the Court is being pushed against the wall”.

When a Delhi High Court judge tried to ask government about the Delhi riots case and the incendiary speeches made by a politician, he was transferred overnight, Justice Shah said, referring to the transfer of Justice Muralidhar, which seemed to have been hurried in the light of the case. “Why are the political establishments and the police so emboldened?...It is because of the weak judiciary.”

The Supreme Court played a crucial role in reinforcing a draconian law such as the Unlawful Activities (Prevention) Act (UAPA) by giving it an interpretation in NIA vs. Zahoor Watali’s judgement that favours investigative agencies and goes against the accused, said Justice Shah. He pointed out further that this legislation is now being used to lock up citizens who show some sort of dissent. “The government is using every imaginable means to silence any and all dissenting opinion and to clamp down on any alternate views that might exist. More problematically, the Judiciary is watching all this happen by the sidelines like a mute spectator without uttering a word.”

Not only did the Apex Court fail to fulfil its purpose of protecting minorities “from the tyranny of the majority,” it also abdicated its position as adjudicator in relation to the issue of Kashmir's lockdown. He also referred to the sluggish response of the Court in taking suo motu awareness of the COVID-19 migrant crisis, in this context.

Justice Shah was also critical of the “opaque” Collegium framework for the selection of judges and said that the only reasonable way was to perhaps read down the National Judicial Appointments Commission (NJAC) Act by the Supreme Court to create a process that was acceptable for all stakeholders and without Executive interference that guaranteed judicial independence.

Opinion of Advocate Dushyant Dave

The event also saw a brief speech by Dushyant Dave, Senior Counsel and President of the Supreme Court Bar Association, who also chaired the event.

Dave, however, respectfully disagreed with Justice Shah on some points and opined that the fall of the Apex Court, in fact, began when it, back in 1992, “grabbed the power to appoint Judges of the Supreme Court and High Courts.” “The Collegium system works on give and take... the practice of scratching each other’s backs practised by Judges, we cannot even criticise it or we will be held accountable and in contempt.”

Suggesting that the structure of the Collegium operated like a club or a “cabal”, Dave said that the structure was opaque and almost undemocratic provided that every Collegium judge came with his own set of recommendations to create. “Judges who are being appointed are not all at par... of course there are good judges appointed also... but administrative powers are being abused by the Collegium across the country.”

Dave claimed that they imagined the freedom of the three pillars and a division of powers when the Constitution framers drafted the Constitution. However, he added that they did not foresee the situation that India is currently facing, where executive pressure could lead to the judiciary being overwhelmed in terms of court appointments. In this backdrop, Dave also said that in his opinion, the “Collegium system has to be dynamited.”

“Judiciary works because of both Bar and the Bench, but today where is the Bar? They come on TV but do they ever speak against the Judiciary? The fallen standards of the Bar is something to be worried about.”

Not just the Bar, Dave said the Indian people’s collective consciousness needed to be stirred as people seem to have forgotten to stand up for their rights or for what is right or wrong. Dave also called in his brief address for the integrity and conscience of the citizenry to be stirred at a time when the rule of law seems to be absent in India.

Justice Shah's lecture was then preceded by the conferring of the Dr. Asghar Ali Engineer Lifetime Achievement Award, 2020 on Justice Hosbet Suresh posthumously.