Misplaced Priorities Or Simply Towing The Line? Why Top Supreme Court Judges Have Been Caught Napping

When it comes to upholding civil liberties and constitutionally guaranteed rights, a conducive environment바카라�or the lack of it바카라�must not be grounds for courts to determine if a case pertaining to these bedrocks of democracy can be heard or deferred. Yet, in recent times, several legal luminaries have red-flagged how curtailment of civil liberties by the executive is being increasingly normalised by the judiciary바카라�particularly the top court.

Over the past few years alone, irrespective of who sat on the high throne of the Chief Justice, the lamentation that judiciary was acting as an extension of the executive has been far too frequent. Peti­tions seeking urgent hearing of mob lyn­ching cases or challenging the lockdown across Jammu and Kashmir were dee­med not urgent enough by former CJI Ranjan Gogoi, whose recent nomination to the Rajya Sabha by President Kovind under the 바카라�distingui­shed citizens바카라� quota has triggered a deafening opprobrium. Gogoi바카라�s successor, S.A. Bobde, some say, has continued the trend with cases challenging the controversial CAA, atrocities on students in Jamia Millia Islamia and Jawaharlal Neh­ru University or alleged executive inaction during the communal riots in Delhi.

The very meaning of a habeas corpus writ바카라�produce the body바카라�seemed to have also undergone a metamorphosis in cases of Kashmiri leaders like Farooq and Omar Abdullah, Mehbooba Mufti or M.Y. Tarigami. Despite pleas before the apex court for the release of the Abdullahs or Mufti from their seven-month house arrest, the apex court, first under Gogoi and now with Bobde as CJI, remained unmoved. Farooq walked out recently, not because the SC ordered so but because the government finally allowed him. His son, Omar, continues to be in detention, as is Mufti.

In Tarigami바카라�s case, the apex court had told CPM veteran Sitaram Yechury, on the latter바카라�s habeas corpus plea, to 바카라�visit Tarigami and inform the court about him바카라�. Lawyer and legal commentator Gautam Bhatia terms this a 바카라�bizarre perversion of the right to hab­eas corpus바카라� and says 바카라�while the court refused to pronounce on the validity of the detentions themselves, it sought to fashion ad hoc compromises in individual cases without discharging its constitutional obligation바카라�.

In stark contrast are prompt actions taken by the SC in cases where the government or its sympathisers sought refuge and remedy. A remarkable case in point has been the attempt to book civil rights activist Harsh Mander for hate speech바카라�pursued in the SC by the second seniormost law officer of the country, sol­icitor general Tushar Mehta, on the basis of an allegedly 바카라�edited바카라� video clip submitted by Delhi Police. The oral plea against Mander in the SC coincided with petitions by 10 civil society members, inc­l­u­ding Mander, who sought registration of FIRs against BJP leaders Anurag Thakur and Kapil Mishra for alleged hate spee­ches in the run-up to the riots in northeast Delhi. While the court ref­rained from passing any directives against Thakur and Mishra, it issued a notice to Mander.

The Delhi violence, which left over 50 people dead, or the sustained nationwide anti-CAA protests brought out vastly contrasting sides of the judiciary. As the riots raged, Delhi High Court justices, S. Muralidhar and A.J. Bhambhani, dir­ected pol­ice to evacuate victims and take the inj­ured to hospital. Later, a bench headed by justice Muralidhar slammed police for inefficiency. Hours later came orders of his 바카라�immediate바카라� transfer to the Punjab and Haryana High Court바카라�under consideration of the Centre for over a fortnight then. A day later, when a Delhi HC bench headed by chief justice D.N. Patel heard the riot-rel­ated cases, the urg­ency evaporated and the court adj­ourned the hearing till April 13. An SC bench headed by CJI Bobde later frowned upon the Delhi HC바카라�s decision and directed for an early instruction.

Dushyant Dave, senior advocate and president of the Supreme Court Bar Association, described the Delhi HC바카라�s decision as an 바카라�abdication of constitutional duty바카라� and said the court, 바카라�as guardian of the Constitution, was bound to have acted with alacrity바카라� enforcement of law does not wait for conducive timing바카라�. The rationale of the court to not order immediate registration of FIRs was also not lost on former Supreme Court judge Madan B. Lokur. 바카라�FIR is the first information report; the very nom­enclature has a sense of urgency. What purpose will it serve to register an FIR four weeks after an alleged criminal act has been committed?바카라� he wonders. He says the sudden transfer of Muralidhar 바카라�even if it had been recommended earlier by the collegium, has no plausible explanation바카라�the CJI could have waited, at least for a few days if not more, to not­ify the transfer as there was no apparent urgency to send him away바카라�.

The cases related to the CAA protests present a strange dichotomy too. The Allahabad HC바카라�s strongly-worded direction to the Yogi Adityanath government in Uttar Pradesh to remove, with immediate effect, hoardings it had put up in Lucknow listing anti-CAA protestors with their images and addresses was hailed by many as upholding the rights and dignity of dissenters. Given the massive political polarisation across India over CAA, the state government바카라�s move was one that could incite violence against the protestors바카라�among them Congress workers Sadaf Jafar and former IPS officer S.R. Darapuri. The UP government, however, moved the SC to challenge the high court order. While a vacation bench refused to stay the high court바카라�s order, it felt that the matter should be 바카라�decided by a larger bench바카라�. The buffer provided by the SC was promptly used by the Adityanath government to effectively render the high court바카라�s directive infructuous by way of an enabling legislation.

In the midst of this paradoxical theatre of the judicial system, two sta­tements were made바카라�one each from the executive and the judiciary바카라�which portend a worrisome flux. Responding to a debate in Parliament on the Delhi riots, BJP lawmaker Meenakshi Lekhi said she felt that 바카라�IB (Intelligence Bureau) reports about some people should be made public (the reference here was perhaps to Justice Muralidhar)바카라�everyone will und­erstand who was transferred and for what reason바카라�. Though it is routine affair for the SC collegium to seek IB바카라�s reports while appointing, promoting or transferring judges, Lekhi바카라�s statement is being seen as an intimidation of the judiciary and possible ind­ex-linking of transfers to how the government views certain judges.

The other statement of consequence was by justice Arun Mishra, the third seniormost SC judge. Mishra publicly hailed Prime Minister Narendra Modi as an 바카라�internationally acclaimed visionary바카라� and a 바카라�versatile genius바카라�. Such high praise for Modi by a sitting apex court judge is unusual, to say the least, particularly since the Centre and the Prime Minister바카라�s Office바카라�or even Modi, the ind­ividual바카라�can be, and have been, a petitioner or defendant before the courts.

While former Delhi HC chief justice A.P Shah described Mishra바카라�s comments as 바카라�astonishing and atrocious바카라�, lawyer Prashant Bhushan said, 바카라�The Modi government바카라�s record of giving short shrift to the Constitution and civil liberties is a matter of public record바카라�with such statements coming from a SC judge, you still wonder why the Supreme Court is not protecting your rights바카라�.