Is judiciary being tamed?

There is an urgent need to foil concerted attempts to erode independence of the judiciary, writes MY Siddiqui

India has witnessed the most degrading, serious and long-lasting assault on the Republic in taming of the judiciary during the last six years since 2014. There has been a concerted attempt by the NDA Union Government to erode the independence of the judiciary, some of which has succeeded. Even after the attempt to bring back the executive into the role of selecting judges of the higher judiciary (High Courts and the Supreme Court of India, or SCI) through the Judicial Appointments Commission having been scuttled by the SCI, it has been seen the current Union Government has been rejecting willfully appointments from minorities who have borne the brunt of assault by the government.

Apart from sitting for years on hundreds of recommendations, the government has refused to appoint inconvenient judges whose appointments were reiterated repeatedly by the Collegium of the SCI in gross violation of the law. The assault on the judiciary has led to the SCI having virtually collapsed in refusing to act as the guardian of the Constitution and the custodian of the fundamental rights of the people.

The habeas corpus petitions, the challenges to the Covid-19 induced lockdown and denial of human rights in Jammu & Kashmir were not heard for months and even when heard were just adjourned without substantial relief. The SCI has turned a deaf ear to serious assaults on the national universities of repute like the JNU, BHU, AMU, Hyderabad University and Jamia Millia University.

In addition, a new jurisprudence of shield covers has been evolved allowing the court to accept and act upon unsigned notes handed over to judges by the government without being shown to the party (parties) concerned in gross violation to the principle of natural justice.

The sealed cover jurisprudence allowed the SCI to put lid on the mysterious death of Judge Loya trying present Home Minister for conspiracy to murder. It also helped the government put the lid on the Rafael defence scam. Deference of the SCI to the government, however, could be more starkly seen during the lockdown when cases of the migrant labour came up and the SCI just deferred to the government wisdom without even seriously examining the violations of the rights of the migrant workers leading to their destitution, starvation and walking back home, hundreds, even thousands of kilometres.

In all such hearings of cases, the Solicitor General became points man of the government for all politically sensitive cases where he was allowed to be present. Even without notice to the government or filing of any caveat by the government in violation of all SCI rules, often the apex court had copies and reports handed over to it by the Solicitor General without any other parties to such cases having any access to it and that often-formed basis for orders of the court.

Since the apex court’s cave-in to the Union Government in upholding Emergency of 1975-77, in particular suspension of fundamental rights of the people as guaranteed by the Constitution of India especially fundamental right to life and personal liberty despite ten High Courts then having quashed the emergency, the SCI bounced back buoyed by omnibus amendments of the Constitution brought by the successor Morarji Desai Government followed by spate of landmark decisions by the SCI to strengthen public institutions, statutory bodies and rule of law based system of democratic governance for solid checks and balances as well as accountability of the government. Entire democratic world hailed SCI as the upholder of democracy, rule of law and guardian of the Constitution of India.

All the gains thus made since the Emergency to prop up democracy have come to naught during the last six years. The fragility of democracy has been triggered by one-man fascist Union Government where decisions taken are not collective, but centralized, arbitrary, authoritarian, anti-people and undemocratic without forethought and pre-planning. Even semblance and façade of democracy has been reduced as mere election-centric, under the watch of the SCI doing little to enforce rule of law as enshrined in the Constitution of India!