Vinod Mubayi

The last couple of months have witnessed several self-goals by India’s top judiciary at least as far as elementary or natural justice is concerned. First there was the denial, rubbishing would be a more accurate description, of the Zakia Jafri petition by a Supreme Court panel headed by Justice Khanwilkar. Mrs. Jafri’s husband, ex-Member of Parliament Ehsan Jafri, was brutally killed by a mob in Ahmedabad in the Gujarat pogrom of 2002 as police stood by doing nothing, despite frantic calls to the political establishment including then Gujarat Chief Minister Narendra Modi.

She had repeatedly petitioned the Supreme Court to fix responsibility for the deaths of Jafri and over a thousand others, mostly Muslims. In denying the petition, the Supreme Court panel not only severely castigated the petitioners for having had the temerity to approach the court, it focused its ire on those who had assisted but allegedly misled Mrs. Jafri: the human rights activist Teesta Setalvad and retired police officer R.B. Sreekumar who had given evidence of the egregious failure of the Gujarat government to curb the violence. In an unprecedently intemperate judgment, the judges then virtually invited the Gujarat police to arrest the petitioners Setalvad and Sreekumar, which the Gujarat police promptly did the very next day. To say the least, it is extremely problematic when the judiciary itself begins to persecute defenders of human rights. Teesta Setalvad has battled courageously for over two decades to bring to justice those responsible for the 2002 Gujarat pogrom in which several thousand minority Muslims were brutally killed by violent Hindutva mobs.

Not content with demonizing Teesta and Sreekumar, another Supreme Court panel did something even more outrageous. On July 14, while passing judgment on a petition filed by Himanshu Kumar, a Gandhian who runs an NGO in Chhattisgarh, and 12 other persons that called for an independent investigation in a 2009 case of extra judicial killing of Adivasis in the state of Chhattisgarh, the Court not only imposed a penalty of Rs. 5 lakhs on Mr. Kumar; it accused him of “hatching a criminal conspiracy” to defame the security forces and invited the police to take action against him and the others. Human rights and other civil society organizations in Chhattisgarh strongly criticized this judgment when they noted: “We, the civil society organizations and people associated with the Human Rights movement in Chhattisgarh are alarmed to note that this judgment has virtually made the pursuit of justice in a judicial court a criminal act itself. This judgment is a threat to the very existence of human rights advocacy and systems of accountability from the Police and Security Forces in Chhattisgarh, especially Bastar.”

But the apogee of judicial thoughtlessness or incompetence, one hesitates to label it perfidy, is the unconditional release of eleven convicted murderers and rapists in Gujarat sentenced to life imprisonment in 2008 who barely served 14-15 years in jail. During this period of imprisonment, they were frequently let out on parole for attending religious events or even a housewarming. The crimes for which they were convicted was raping a 5-month pregnant Bilkis Bano, killing her 3-year-old daughter, raping and then murdering her mother, her two sisters and several other women in her family, a total of 14 women raped and murdered. By a quirk of fate Bilkis survived and found the courage to testify against the killers, many of whom were her neighbors. It took six long years to convict the criminals and the case had to be moved out of the state of Gujarat to the neighboring state of Maharashtra at the behest of the Supreme Court.

In April one of the convicts appealed to the Supreme Court asking for a remission of his sentence. The court referred his appeal to the Gujarat government which then constituted a panel consisting of 5 pro-BJP politicians and 5 Gujarat government officials. The panel accepted the appeal of the convicts and all the eleven rapists and killers walked free to be met with garlands and sweets by their supporters. This outcome was hardly a surprise. Gujarat, where the crimes occurred, has been dubbed as the laboratory of Hindutva. Ruled by the BJP for over two decades, it is the state where Modi perfected his brand of communal dog-whistles, majoritarian authoritarianism, and demonizing minorities over 12 years as the state’s chief minister before he became Prime Minister in 2014.

The utter crassness of the decision to release these criminals has ignited protests in the rest of the country. More than 130 retired civil servants wrote an open letter to the Chief Justice of India denouncing the release of the convicted criminals and requesting him to rectify the “horrendous decision” and send them back to jail. The remarks made by some of the members of the panel justifying the release were so horrific that they graphically illustrated the utter moral bankruptcy of the BJP. One member was quoted as saying that the prisoners deserved to be released as they were Brahmins and men of good sanskar (culture). Prime Minister Modi, as is his practice when his partymen do something reprehensible, and his chief sidekick Home Minister Amit Shah have maintained complete silence on the shameful release. Modi’s hypocrisy needs to be highlighted when one recalls his long independence-day speech on August 15 where he dwelt at length on the need to protect women.

It is very unlikely that the decision to release was taken without a nod or sign of assent at the highest level. Newspaper commentators have speculated that the forthcoming Gujarat state elections were probably the driver of the decision to release the criminals to polish and underscore BJP’s Hindu image. What has happened to the convicted criminals in the Bilkis Bano rape and murder case contrasts sharply with what happened to the convicts in the Nirbhaya rape and murder case a decade ago. In the latter case, the criminals were sentenced to death and hanged a few years ago. So why the very different outcome now? Is it because the victims are Muslims? Mindful, apparently, of the public outcry, the Supreme Court has now admitted a petition to review the decision to release.

It is not only these high-profile criminal cases that have shown the higher judiciary acting like a branch of the executive. There are many other cases that have been pending for several years where the court has seen fit to evade and refuse to deal rather than issue a decision that could embarrass the government. The most notable of these cases include:

The challenge to electoral bonds that allow unlimited and anonymous corporate funding of political parties, over 90% of which is estimated to have gone to the BJP. The electoral bonds are tantamount to an open invitation to political corruption. The constitutional challenge to these bonds has been lying in the Supreme Court docket since September 2017.

The constitutional challenge to the abrogation of Article 370 and the removal of the status of state of J&K and its split into two union territories. This case was filed immediately after the changes brought about by the Modi regime in erstwhile J&K on August 5, 2019 and has remained inactive since August 6, 2019.

The Citizenship Amendment Act was challenged constitutionally in the Supreme Court in December 2019. It has not yet been acted on by the Court. Writing in The Wire of August 26, legal analyst Gautam Bhatia dubs these non-actions of the Supreme Court as evidence of “judicial evasion” (akin to errors of omission) where the status quo happens to directly benefit the government. According to Bhatia, judicial evasion occurs when:

“… by keeping a case pending, and delaying adjudication, the Court effectively decides it in favor of one of the parties (most often, the party in a stronger position, i.e., the government), simply by allowing status quo to continue. Judicial evasion is most starkly visible in the court consistently refusing to decide the electoral bonds case, even as election cycle after election cycle sees vast amounts of money being funnelled into the political system, with a disproportionate amount going to the ruling party (the reason for this is that, structurally, under the electoral bonds scheme, the government has access to donor data, while opposition parties do not). This is a distortion of the electoral playing field – the ground rules of democracy – at its starkest, and exactly the kind of situation where the Supreme Court’s role as constitutional umpire is most desperately needed. It is also the case where the political stakes are particularly high, and where status quo benefits the political executive to a very high degree. Readers may therefore make up their own minds what the continued refusal by the Supreme Court to hear and decide the case – a tradition in which CJI Ramana now follows his three predecessors – means. The consequences of judicial evasion are, in addition, clearly visible in the Article 370 case … where continued inaction by the court results in the creation of fait accompli on the ground that eventually becomes irreversible in fact, and makes a court judgment effectively infructuous.””

The Pegasus scandal where the government is widely believed to have infiltrated and hacked the cell phones of journalists, lawyers, human rights activists, academics, and opposition politicians using the Israeli NSO group’s spy software is another example where the Supreme Court has so far done essentially nothing to hold the government to account.

But the most egregious example of the Supreme Court acting like a branch of the Executive rather than the judiciary is the striking down of scores of amendments to the Prevention of Money Laundering Act (PMLA) by a panel headed (again!) by Justice Khanwilkar who, until retiring on July 27, seemed to believe the government could never do wrong. The PMLA was passed by the Vajpayee NDA regime in 2002 to curb financial corruption and amended by the UPA regime a few years later to add safeguards against government overreach. Between 2002 and 2014, the Enforcement Directorate (ED), the implementing agency for the PMLA, launched only 112 investigations. Veteran journalist Prem Shankar Jha, writing in The Wire, points out how and why this changed drastically after the Modi regime came to power in 2014: “Between June 2014 and the end of March 2022, the Enforcement Directorate launched 5,310 cases, conducted 3086 searches, attached Rs 104,702 crore (1.4 trillion) worth of assets (calling these the “proceeds of crime”) and filed 880 charge sheets. However, it secured only 23 convictions! By any yardstick, therefore, the PMLA has been a miserable failure as a deterrent to financial and economic crimes. So, why is the Modi government so determined to retain it in precisely the form in which it has so spectacularly failed?”

According to Jha, “the answer is that since 2015, and in particular, since it added no fewer than eight more amendments in 2019, Modi has been using the Act for an altogether different purpose. This is to tame or destroy, the myriad opposition parties that make up India’s political mosaic, and turn India into a one-party state.” In this context, it is significant that the amendments to the PMLA, “reversed the [constitutionally guaranteed] burden of proof, placing it upon the accused – who had to prove their innocence – instead of on the government having to prove their guilt.” Under the PMLA, which was upheld in toto by the Justice Khanwilkar-led Supreme Court panel, the ED has acquired powers unheard of in democratic governance, powers that far exceed those of the CBI or other police agencies. The ED can go anywhere, arrest anyone, interrogate them for unlimited periods of time without any factual substantiation or without even providing suspects with a copy of the formal charges against them. They can be jailed at the whim of the ED and bail is extremely difficult to get. This law and its enforcement bear all the hallmarks of a police state.

The fact that the panel led by Justice Khanwilkar chose to endorse all the features of a law whose main purpose is intimidation of political intimidation speaks volumes about where the judiciary has landed up in the Modi era.

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