Sumanta Banerjee

The two common utterances regularly heard during arguments in Indian courts are – “I have faith in the judicial process” (by the prosecuted), and “The law will take its own course” (by the prosecution). But both these two assertions need to be questioned, given the experiences of Indian citizens in their confrontation with certain types of judges on the one hand, and sufferance from laws on the other, like oppressive colonial Acts from the British era which are still on our statute book, and newer draconian Acts that continue to be promulgated in today’s India.

To start with the role of the judiciary, there is a complex relationship between its powers to deliver justice and its obligation to adhere to the prevailing laws under which it can deliver justice. In the history of the Indian judiciary, it is an individual judge (or a group of judges on the bench) who had often decided the fate of a case, depending on her/their interpretation of the laws. Some judges passed immediate sentences claiming to follow meticulously the provisions of a particular Act, while some others decided to give relief to the accused under some other provision of the same Act. Let me give an instance. In 1975, during the Emergency, Justice Krishna Iyar of the Supreme Court signed the death sentence of Kishta Gowd and Bhumayya, two leaders of peasant movements in Telangana, on the allegation that they had killed landlords who had been oppressing them and their women. Without going into their complaints and examining the context, Justice Krishna Iyer (whom I’ve always respected for his brave and independent stand elsewhere), dismissed their arguments and sentenced them to death – just because, as he justified himself, he had to adhere to the provisions of the law. But as a judge, didn’t he have the right to discretion? Besides, he failed to recognize the rights of Kishta Gowd and Bhumayya to access legal recourses, which were denied to them under the prevailing regime. The same legal recourses which were denied them at that time, are now being extended to allow the convicts of the Nirbhaya case to delay their execution. Such are the whimsicalities of our judiciary.

Judges who betray their constitutional obligations

To take a recent example of judicial abdication of responsibility, let me quote the rather bizarre statement made by the Chief Justice of India, Sharad A. Bobde on March 2, in response to a petition by senior advocate Colin Gonsalves. The latter, after the horrendous riots in north-east Delhi, requested the apex court to urgently intervene and pass directions to arrest those delivering hate speeches and to prevent the spread of violence. Expressing his inability, the Chief Justice said: “We cannot stop things from happening. We cannot prevent anything…We feel a kind of pressure on us…We cannot handle that.” This utterance should go down in the history of Indian judiciary as the most shameful statement made by a Chief Justice, after the infamous 1975 judgment of the apex court that sanctioned the suppression of fundamental rights. I do not have to remind the present honourable Chief Justice Sharad Bobde of his power to intervene suo motu in such circumstances, where he could have passed orders to arrest the BJP leaders who by their speeches were provoking their followers, that were to lead to the riots that followed. He could have stopped “things from happening” and “prevent anything,” by simply issuing such orders.

 But it is his utterance at the end of his statement that sounds intriguing. He talks about a “a kind of pressure on us…We cannot handle that.” He should clarify and specify the sources from which these pressures are operating. Is he referring to the civil society groups which are filing PIL cases in expectation of justice for the disadvantaged people, and human rights groups which approach the apex court expecting justice for victims of police brutalities? Or, is he facing the “kind of pressure” that is usually inflicted by today’s ruling politicians on every institution, including the judiciary?

To add to that ambivalent statement of judicial helplessness, Chief Justice Bobde during a hearing two days later on March 4, came out with another intriguing statement. After a long exchange with the advocate Colin Gonsalves, who while pleading on behalf of the victims of the riots in north-east Delhi demanded the arrest of the BJP leaders who instigated the riots, the Chief Justice asked the High Court to expedite the case against them. While this is indeed a welcome move, at the end of the arguments, he tended to shift his shoulders in favour of the ruling government’s top law officer, Solicitor General Tushar Mehta. Opposing the arrest of the BJP leaders, Mehta had argued that it was not the opportune time for that as it might lead to renewal of violence. Agreeing with him, the honourable Chief Justice came out with this amazingly injudicious utterance: “Sometimes, there may be a flare-up when leaders are arrested. You know what happened in the Bombay riots … Shakha Pramukhs were arrested, it flared up. (sic).” So, are we to suppose that the police should not arrest leaders who instigate communal riots, since there can be a `flare up’? Do we accept the proposition that the police are not capable of suppressing such a ` flare up’ – which they are expected and empowered to do? These are major questions that confront us, Indian citizens who feel confused, if not betrayed by the frequent ambiguous utterances made by our honourable judges.

To give another example of the violation of our Constitutional rights by some Supreme Court judges, I would like to refer to a judgment delivered by a bench headed by R. Banumathi and A.S. Bopanna on March 4, 2020, regarding the case of Chief Information Commission vs. High Court of Gujarat. The honourable judges ruled that if a citizen wanted copies of judicial proceedings, she could not get it through an RTI (Right To Information) request. This verdict of the judges violates the basic premise of the RTI Act, which states that all information relating to the government belongs to the citizens and they have the right to access it. The RTI Act thus falls under the jurisdiction of Article 19(1)(a) of the Indian Constitution which guarantees and protects the fundamental rights of Indian citizens. Will the two apex court judges have the honesty to acknowledge their mistake, and review their judgment?

Added to our sense of betrayal by the judicial system, are the obsequies paid by a senior Supreme Court judge to Prime Minister Modi, especially at a time when under the Modi regime, parts of the national capital were up in flames of communal riots. Justice Arun Mishra, third in seniority in the apex court, while addressing a global conference of jurists in Delhi on February 22, 2020, described Modi as “an internationally acclaimed visionary” and a “versatile genius, who thinks globally and acts locally.” Henceforth, can any litigant against the government trust him to deliver an impartial judgment? The least that this judge can do to preserve his self-respect is to recuse himself in future from hearing cases that involve disputes between citizens and the government.

Are our honourable judges committed to the universal ethos of justice, or subject to the pressures of the ruling government, or their own upper class biases?

The March 2 utterance of helplessness by the Supreme Court Chief Justice Sharad Bobde, and his later March 4 utterance that indirectly and willy-nilly defended the Delhi police’s inaction, both prior and during the riots in north-east Delhi, raise a number of disturbing questions that reflect upon the judicial capability of the judges who are presently manning our courts from the district to the state high court levels up to the Supreme Court.

Let me be blunt – at the cost of inviting contempt of court summons by these judges. These `honourable judges’ (do the deserve that official term ?) have betrayed the Indian citizens. As an illustration, let me draw attention to the rather insensitive comment made by a Supreme Court bench on February 10 on the on-going Shaheen Bagh protestors in Delhi. Headed by the same Chief Justice Sharad Bobde, it took up the issue of an infant dying after returning home from Shaheen Bagh where his parents had taken him along to join the anti-CAA protests. The bench raised the question: “Can a four month old child be taking part in such protests?” It was a question posed in defence of a petition made by a 12-year bravery award winner Zen Gunratan Sadavarte, who sought to prevent infants and children from being taken to protest demonstrations, citing the death of the infant. We agree with her concerns, and urge parents to protect them when taking them out in public demonstrations.

But there is another side to the story – from which the Supreme Court judges chose to look away. Ensconced inside their comfortable chambers and homes, they are far removed from the slums of the poor women who have dared to come out in the streets to assert their rights and protest against the discriminatory and oppressive laws like CAA, NRC and NPR. Coming back to the particular case of the death of the baby, a woman lawyer who came to the defence of the couple who had taken their baby to the protest site regularly despite the extreme cold weather which eventually led to their child’s death, argued: “The child’s mother lived in a place which cannot be called home. It is an enclosure made of mere plastic sheets.” (Re: The Times of India, February 11, 2020). Obviously, the mother could not leave behind her child there, and chose instead to carry the four month old child while daring to join demonstrations of protest against laws which discriminated against her. Challenging her right to join the protest with her child, Solicitor general Tushar Mehta asked: “Can that be a ground to take a four-month-child to the protest site?” But then, let’s ask Mehta: If the state fails to provide facilities for mothers and their children in the slums, how can the mothers provide for themselves, even when they want to assert their rights by coming out in public protests in Shaheen Bagh in Delhi, Park Circus in Kolkata and other parts of India,

Instead of blaming the parents, while sharing their personal tragedy, the honourable judges should have delved into the fundamental causes that led these poor parents into the streets, and should have hauled up the government for failing to provide them with humane housing facilities. But then what can we expect from well-paid judges who come from a privileged background and are totally ignorant of, and indifferent to, the plight of urban slum-dwellers, and the agricultural poor? Very few from amongst them have cared to empathize with them, while passing judgments.

May be to compensate for the insensitive comments made by its bench, a Supreme Court bench appointed a group of interlocutors to enter into the long-required dialogue with the grannies, their sons and daughters and grand children who had been sitting in a dharna in Shaheen Bagh against the discriminatory citizenship laws for the last months. The interlocutors could not persuade them from vacating their site of protest, since they proved that they had left open a portion of that site for free movement of ambulance and other civic facilities, while it was the police which was blocking the main road that linked Noida. The Supreme Court bench is yet to decide on the report submitted by the two interlocutors, and another affidavit submitted by Wajahat Habibullah (who was chosen by the interlocutors to investigate), where he instead of blaming the protestors, sought to know the names of the police officials responsible for blocking other roads.

Meanwhile, the apex court is prevaricating in taking up suo motu, cases that involve the human rights of citizens and challenge the ruling powers. Abhishek Singhvi, a senior advocate and also a Congress party spokesperson, during an interview with Karan Thapar on The Wire website on March 5, said that judges have a tendency “to decide hard questioning by adjourning them.” He added that at the trial court level, “the quality of trial judges is generally poor”, which means that at the first point of contact with the judicial system, Indian citizens cannot be certain of getting justice.

Indian judges afflicted with casteist prejudices and superstitious beliefs

Apart from the judiciary’s tendency to surrender to the dictates of the ruling party, and adhere to repressive laws as evident from the cases cited above, there is another alarming trend that erodes public faith in the courts’ ability to deliver justice. During the last several decades, there have been numerous cases of judges – ranging from the district and state levels to the apex court – who have delivered judgments or made utterances that betrayed their religious and casteist prejudices, and superstitious beliefs. Let me give a few examples. On December 25, 1968, at Kilvenmani in Tamilnadu, Dalit villagers were massacred by upper-caste landlord led gangs. Seven years later, they were acquitted by the Madras High Court, with the specious argument that respectable upper-caste people could not indulge in such violent acts!

Since then nothing has changed in the mindset of our judges, who continue to deliver verdicts and make utterances that stink of their bias in favour of upper caste Hindus and belief in superstitions. The most controversial judgment of the apex court in recent years was the one delivered by its then chief justice J.S. Verma, who in 1995, upheld the term ‘Hindutva’, by defining it as a “way of life or a state of mind and is not to be equated with or understood as religious Hindu fundamentalism.” This paved the way for the Sangh Parivar to legitimize the term `Hindutva’ and use it to serve its majoritarian communal agenda in its electoral campaign. When some two decades later in 2016, civil rights activist Teesta Setalvad appealed to a Constitution Bench of the Supreme Court requesting it to review the `Hindutva’ judgment, as it had become a mark of Indian nationalism and citizenship that excluded the religious minorities, the Bench declined to go into the 1995 `Hindutva’ verdict – thus again betraying its majoritarian religious bias.

To what ridiculous extent such religious bias and superstitious beliefs can descend is evident from the comments made by Justice Mahesh Chandra Sharma of the Rajasthan High Court on the eve of his retirement in Jaipur on May 31, 2017. He was reported to have said that peacocks did not mate, but sired their offspring through tears! Then he added another gem – declaring that the cow was the only animal that inhaled and exhaled oxygen, and so its urine had “miraculous properties of destroying germs and preventing ageing.” Can Indian citizens trust such judges for rational judgments?

Given this state of the quality of Indian judges, justice is too important a matter to be left to them. It is no longer an `internal matter’ – the much used term that our ministers and bureaucrats use to prevent UN and other international human rights bodies from trying to investigate into India’s atrocious record of human rights violation.

Need for international audit of India’s judicial system

Since the Indian judicial system is fast descending to the nadir of juridical submission to pressures from ruling politicians, and corrupted by religious and casteist prejudices, it is immediately necessary to salvage the system from further degeneration. A few individual judges, both at the apex and state high courts, have courageously resisted the overwhelming wave of politicization and corruption of the system, by passing judgments that protect the rights of our citizens. But theirs are solitary voices in the judicial wilderness that India is living through. They alone cannot stem the rot. They need solidarity and support from the global community of jurists, who along with civil society groups and lawyers inside India, can exert pressure on the Indian judiciary to restore the internationally recognized norms of delivering justice, to which it is committed.

How to proceed in this direction? To start with, human rights lawyers and civil society groups in India can approach the International Court of Justice, the judicial organ of the UN based in Hague. Its main role is to “settle, in accordance with international law, legal disputes submitted to it by States …” New Delhi may just well claim that the Court has no right to intervene since India has not submitted any such `legal dispute.’ But the Hague Court, under its same brief is authorized to “give advisory opinions on legal questions referred to it by authorized UN organs and specialized agencies.”

One such legal question that has been raised by a UN authorized organ – the Law Society of England and Wales, representing solicitors from that country – is the justifiability of the detention of the President of the Jammu and Kashmir Bar Association, Mian Abdul Quayoom. In a letter to Prime Minister Narendra Modi dated March 5, 2020, the Society has expressed its “grave concern” over his detention, describing it as “judicial harassment.” Taking cue from this, Indian civil society activists and human rights lawyers can approach similar `authorized UN organs and specialized agencies to forward their concerns to the International Court of Justice. Its intervention, even through ‘advisory opinions,’ may hopefully pressurize the Indian judiciary to reverse its present course of self-destruction, and move instead towards self-restoration, by purging itself of (i) corrupt practices like bribe-taking; (ii) judicial malfeasance like succumbing to pressures from ruling political parties; and (iii) personal class or caste-based prejudices, and superstitious beliefs.

Top - Home