2002 Gujarat riots: SC to examine SIT report that gave clean chit to PM Modi, 63 others

 2002 GUJARAT RIOTS

The court said it wants to see the justification given by the SIT in its closure report and the reasoning of the magistrate court that accepted it.

Scroll Staff

The court was hearing a petition filed by Zakia Jafri, the wife of Congress MP Ehsan Jafri, challenging the SIT’s clean chit. | Sam Panthaky/AFP

The Supreme Court on Tuesday said it would like to examine the closure report of a Special Investigation Team exonerating 64 people, including Prime Minister Narendra Modi, of involvement in the 2002 Gujarat riots, PTI reported.

A bench headed by Justice AM Khanwilkar said it wants to see the justification given by the SIT in its closure report, as also the reasoning of a magistrate court that accepted it.

The court was hearing a petition filed by Zakia Jafri, the wife of Congress MP Ehsan Jafri, challenging the SIT’s clean chit. At least 69 people, including Ehsan Jafri, were killed when a mob went on a rampage in Ahmedabad’s Gulberg society on February 28, 2002, pelting stones and setting fire to homes.

Modi was then the Gujarat chief minister.

Zakia Jafri’s lawyer Kapil Sibal told the court on Tuesday that he was not presently seeking the conviction of those named in his client’s complaint. He said that Jafri’s contention was that there a larger conspiracy involving bureaucratic inaction, police complicity and hate speech that led to the violence.

“This Republic is too great to look the other way,” Sibal told the court, according to The Hindu.

The lawyer added that Jafri’s allegations were supported by official intelligence about hate speeches, spreading of false information, police wireless messages and statements of senior police officials.

“People were massacred due to police inaction,” Sibal said. “I am giving you official evidence. Who will be answerable for this? The future generations?”

The SIT had submitted its closure report on February 8, 2012, and said that there was no prosecutable evidence against Modi and 63 others named in the complaint.

Jafri had filed a protest petition against the report before a magistrate court, but the magistrate rejected it.

In October 2017, the Gujarat High Court upheld the magistrate’s decision.

Source: scrollin

The Political Fix: Why is BJP treating the Supreme Court like a tie-breaker for the farmers protest?

A newsletter on Indian politics and policy from Scroll.in.

Rohan Venkataramakrishnan

The Big Story: Policy by proxy

As 2021 gets under way, after 45 days in the cold and despite eight rounds of talks with the government, tens of thousands of farmers continue their demonstration on the borders of Delhi. The farmers are protesting three agricultural laws passed in controversial manner by the Bharatiya Janata Party-led government that seek to deregulate portions of the farming sector.

While the government sold the laws as reforms that would liberate and energise Indian agriculture, the protesters saw them as a gateway to a corporate takeover of farming. The subsequent pushback led to one long-time political ally of the BJP quitting the government and prompted thousands of protesters – Mint says the number is around 200,000 – making their way to the borders of the capital.

For background on the farmer protests, read our earlier articles:

    What you need to know about the chaos in the Rajya Sabha over the farm bills

    Three ways to understand the massive farmer protests taking on Modi in Delhi

    What unites protesting farmers and critics of RBI’s corporate banks proposal?

The protests managed to extract significant concessions from the government in the first two weeks after they began.

But the farmers have been steadfast in their demand that the laws be completely repealed. They are represented by a collection of farm leaders who managed to put aside their other disagreements and profit from a mistake – when Haryana farm leader Gurnam Singh Chaduni broke through police barricades instead of settling at the Haryana-Punjab border as planned.

The eighth round of talks, held on January 8 between the 41-member delegation of protestors and several Union ministers, was a clear indication of just how deadlocked the issue remains.

First, the ministers kept the farm leaders waiting for a half hour, as they have routinely done during negotiations. When talks began, the farmers restated their demand for a full repeal. The government refused. Union Minister Narendra Singh Tomar claimed that not all farmers were against the laws – and so the ones who are protesting should stand down.

What followed was heated tempers and raised voices, and no resolution in sight. The farm leaders left, agreeing only to meet again on January 15.

Reports suggested the government did make two proposals to break the deadlock. One was to set up a small informal committee with representatives from both sides that would draw up a non-binding proposal for a way forward. The farmers had already rejected this, demanding that the laws should be repaled before any discussions on how agricultural policy should proceed.

The other was to use the Supreme Court – which is taking up the matter on Monday – as a sort of tiebreaker.

Read full article: scrollin

Surprise! Affirmative Action Just Won A Victory No One Expected In The Supreme Court

Justice

by Ian Millhiser Jun 23, 2016 12:26 pm

Justice Anthony Kennedy

For the last several years, supporters of affirmative action have awoken every day justifiably fearing that the courts would bring race-conscious university admissions policies to a swift end. The 2006 appointment of Justice Samuel Alito gave conservatives a solid majority on the Supreme Court, and Justice Anthony Kennedy, the closest thing the Court has to a swing voter on issues of race, has not historically been sympathetic to affirmative action.

Fisher v. University of Texas at Austin, which the Supreme Court decided on Thursday, was the vehicle opponents of affirmative action chose in order to kill the programs. And, as this case proceeded through one of the most conservative federal appeals courts in the country and then, to two separate trips to the Supreme Court, it looked likely that affirmative action was on its death bed. Worse, for defenders of race-conscious programs, Justice Elena Kagan was recused from Fisher, so Justice Antonin Scalia’s recent death appeared unlikely to change the outcome in this case.

At yet, affirmative action will survive. As ThinkProgress quipped shortly after the second round of Supreme Court oral arguments in Fisher, Justice Kennedy spent the entirety of this litigation playing the role of the Dread Pirate Roberts from Rob Reiner’s classic film The Princess Bride. In that film, the Dread Pirate keeps a captive alive, telling him each night that “I’ll most likely kill you in the morning.” Yet in the end, the pirate does not kill his captive, instead turning over his ship and his title to the new Dread Pirate.

As it was in the movies, so it was Thursday in the Supreme Court — sort of. Though Kennedy appeared likely to kill affirmative action at many turns throughout this case, he cast the key fourth vote to uphold it over the dissents of his three most conservative colleagues. But, while Fisher is a victory for affirmative action, it is only a partial one. Kennedy’s opinion makes it clear that universities have a high and ongoing burden if they want to maintain affirmative action programs. It could also potentially inspire a rash of harassment suits targeting these programs.

The University of Texas’ admissions system, as Kennedy notes, is unusual. About three-quarters of the class is admitted through a “Top Ten Percent Plan,” which admits all Texas high school students in the top ten percent (or, more recently, about the top eight percent) regardless of their other qualifications. This plan does admit some students of color, but it only achieved fairly marginal diversity. In 2002, for example, before the university implemented the affirmative action program that was challenged in Fisher, “52 percent of undergraduate classes with at least five students had no African-American students enrolled in them, and 27 percent had only one African-American student.”

Then, in 2003, the Supreme Court upheld an affirmative action program at the University of Michigan law school in Grutter v. Bollinger. As Grutter held, and as Kennedy reiterates in Thursday’s opinion, universities may consider race in admissions because racial diversity benefits all students. “Enrolling a diverse student body ‘promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races,’” Kennedy explains. “Equally important, ‘student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.’”

In the wake of Grutter, Texas decided that race would be one of a myriad of factors that would play a minor role in determining who was admitted among the 25 percent of students who were not admitted by the Top Ten Percent plan. Kennedy’s opinion holds that Texas did not violate the Constitution when they decided to consider race in this way.

So that’s the good news for affirmative action. The bad news is that Kennedy’s opinion also imposes tough and continuing burdens on universities that wish to implement similar affirmative action programs. “Because racial characteristics so seldom provide a relevant basis for disparate treatment,” Kennedy explains, “race may not be considered [by a university] unless the admissions process can withstand” the highest level of constitutional scrutiny. In practice, that means that “through regular evaluation of data and consideration of student experience, the University must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest.” An admissions policy that survives review today may no longer pass Kennedy’s test tomorrow.

Kennedy also emphasizes just how many hoops Texas jumped through in order to produce an acceptable plan. The University of Texas “conducted ‘months of study and deliberation, including retreats, interviews, [and] review of data.'” This review culminated in a “39-page proposal” that “was written following a year-long study, which concluded that ‘[t]he use of race-neutral policies and programs ha[d] not been successful’ in ‘provid[ing] an educational setting that fosters cross-racial understanding, provid[ing] enlightened discussion and learning, [or] prepar[ing] students to function in an increasingly diverse workforce and society.’”

So, while other universities remain free to implement affirmative action programs after Fisher, they will need to jump through similar hoops. And even if they succeed in doing so, they still have an “ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.” It is easy to imagine how conservative litigators can turn this obligation into an opportunity to harass universities with expensive suits designed to wear down the school’s commitment to affirmative action.

In the meantime, however, affirmative action survives another day. That’s an outcome few people thought possible when Fisher first reached the Supreme Court.

Source: thinkprogress

Jammu university convocation: Hamid Ansari calls on SC to help clarify and strengthen secularism, composite culture

Ansari wonders whether ‘more complete’ separation of religion and politics might not serve Indian democracy better

Written by Arun Sharma | Jammu | Updated: April 3, 2016 6:00 am

Jammu: Vice President Hamid Ansari with Chief Justice of India T S Thakur during 16th Convocation ceremony of University of Jammu on Saturday. (Source: PTI)

QUOTING from a report calling upon the Supreme Court to reflect how to protect minorities from majoritarianism, Vice-President Hamid Ansari Saturday urged the court to clarify contours within which secularism and composite culture should operate so as to remove ambiguities.

Addressing the 16th convocation of Jammu University here, Ansari also wondered whether a more complete separation of religion and politics might not better serve Indian democracy.

He said that a few years ago, in a volume published on the occasion of the Golden Jubilee of the Supreme Court, lawyers Rajeev Dhavan & Fali S Nariman had observed that “as we transit into the next millennium, the Supreme Court has a lot to reflect upon, and not least on how to protect the minorities and their ilk from the onslaught of majoritarianism”.

Unless the court strives to assure that the Constitution applies fairly to all citizens, Ansari said, the court cannot be said to have fulfilled its responsibility. “Is it therefore bold to expect that the Supreme Court may consider, in its wisdom, to clarify the contours within which the principles of secularism and composite culture should operate with a view to strengthen their functional modality and remove ambiguities?”

Any public discourse on India being a ‘secular’ republic with a ‘composite culture’ cannot overlook India’s heterogeneity, he added. “A population of 1.3 billion comprising over 4,635 communities… Religious minorities constitute 19.4 per cent of the total… Our democratic polity and its secular State structure were put in place in full awareness of this plurality. There was no suggestion to erase identities and homogenise them.”

Ansari said that the three accepted characteristics of a secular State were liberty to practise religion, equality between religions in State practice, and neutrality or a fence of separation between the State and religion. However, he said, their application had been contradictory and led to major anomalies. “The challenge, then, is to reduce if not eliminate these anomalies.”

Referring to the Constitution, the Vice-President said, “The State is prohibited to patronise any particular religion as State religion and is enjoined to observe neutrality… Programmes or principles evolved by political parties based on religion amount to recognising religion as a part of the political governance, which the Constitution expressly prohibits…”

Noting that secularism was “more than a passive attitude of religious tolerance; it is a positive concept of equal treatment”, he said observers have argued that pronouncements of the Supreme Court have “effectively vindicated the profoundly anti-secular vision of secularism” of some quarters. It has been argued for this reason, Ansari said, “whether a more complete separation of religion and politics might not better serve Indian democracy”.

“The difficulty lies in delineating, for purposes of public policy and practice, the line that separates them from religion… The ‘way of life’ argument, used in philosophical texts and some judicial pronouncements, does not help… identify common principles of equity in a multi-religious society. Since a wall of separation is not possible under Indian conditions, the challenge is to develop a formula for equidistance and minimum involvement. For this purpose, principles of faith need to be segregated from contours of culture since a conflation of the two obfuscates the boundaries of both.”

The Vice-President also emphasised the “constitutional principle” of equality of status and opportunity, saying, “This equality has to be substantiative rather than merely formal and has to be given shape through requisite measures of affirmative action… so that the journey on the path to development has a common starting point.”

Pointing out that one of the main ideals of the Constitution was justice, the Vice-President also quoted John Rawls to say, “Rights secured by justice are not subject to political bargaining or to the calculus of social interests.”

Quoting K N Pannikar, Ansari said, “Whether India developed as a melting pot of cultures or only remained a salad bowl is no more the issue. The crucial question is whether Indian culture is conceived as a static phenomenon, tracting its identity to a single unchanging source, or a dynamic phenomenon, critically and creatively interrogating all that is new.”

Source: indianexpress

Why is menstruation a religious taboo, students ask SC

National

NEW DELHI, February 15, 2016    Updated: February 15, 2016 08:16 IST

Krishnadas Rajagopal

Students who are a part of the ‘Happy to Bleed’ campaign has asked the Supreme Court why the healthy biological process of menstruation is used in the name of religion to discriminate against women.

A Special Bench led by Justice Dipak Misra, which is hearing the Sabarimala temple entry issue, will consider the intervention application. The students want the apex court to address and decide on whether modern society should continue to bear with “menstrual discrimination” when the Indian Constitution mandates right to equality and health of women to achieve gender justice.

The students, represented by senior advocate Indira Jaising, have asked how a religious “taboo” that prohibits the entry of women aged between 10 and 50 years to the Sabarimala temple continues to be widely accepted and even justified by the authorities in violation of the rights of women under Articles 14 and 15 of the Constitution.

At a preliminary hearing on Friday, Justice Misra had asked whether the Vedas, Upanishads and scriptures discriminate between men and women. “Is spirituality solely within the domain of men? Are you saying that women are incapable of attaining spirituality within the domain of religion? Can you deprive a mother?” Justice Misra had asked.

Source: thehindu

Judging the Judge-maker

October 19, 2015 | Updated: October 19, 2015 01:09 IST

Sanjay Hegde

 Till 1993, judges were appointed by the executive in consultation with the judiciary. Illustration: Deepak Harichandran

The four judgments of the majority have reasserted judicial independence, with its concomitant autonomy in appointments, as an integral part of the Constitution’s basic structure. 

A powerful two-term Chief Minister of a central Indian State was seen obsequiously bowing and scraping and loudly saying “Yes Sir, No Sir, As you please, Sir” to an innocuous High Court judge. A friend of the Chief Minister later asked him why the most powerful man in a huge State was kowtowing to someone who only a few months prior, as an undistinguished government pleader, would not have been given even an audience. The Chief Minister’s eyes twinkled as he replied to his friend, “Now, he is one of the few people who can remove me from my chair”. The friend’s eyes twinkled as well when he recollected that the Chief Minister too owed his fortune to his predecessor having to resign after a court verdict.

The story may be apocryphal, as many stories from the bar are, but it explains exactly why judicial appointments are so vital in the running of a constitutional democracy. It also explains why the executive and legislature seek to have a say in the process of selecting judges and why today’s judges zealously seek to protect their two decade-old process of immaculate conception, unassisted by other organs of the state.

Till 1993, judges were appointed by the executive in consultation with the judiciary. In good times, consultation with the judiciary went beyond seeking of opinion to attempt a consensus. However, the judicial voice was often neither dominant nor decisive. In bad times, however, governments made calls for a “committed judiciary”, attempted to court-pack and sometimes indulged in rank favouritism. The situation prompted Ram Jethmalani to famously remark, “There are two kinds of judges, those who know the law and those who know the law minister.”

Quiet revolution

It was in this backdrop, in 1993 during Narasimha Rao’s minority government, with Mandal, mandir and economic liberalisation simultaneously boiling, that a quiet declaration of judicial independence occurred. Justice J.S. Verma’s judgment in the Supreme Court Advocates on Record case, gave the Chief Justice and senior judges of the Supreme Court and the High Courts the power of making almost binding recommendations, for future appointments of judges in the constitutional courts.

Whenever a vacancy arose in the brotherhood, it would be filled by someone pre-approved by the judges and the executive could only demur in the appointment if cogent grounds existed. If, despite executive demur, the judges insisted on the appointment, the executive would have to confirm it. The Indian judiciary managed to create, by constitutional interpretation, a self-appointing elite. Within that elite, the power to recommend appointments belonged to a super-elite called the collegium.

In 1998, during the Vajpayee Government, on a presidential reference, the Court defined the collegium thus: “The opinion of the Chief Justice of India ...has to be formed in consultation with a collegium of Judges. Presently, and for a long time now, that collegium consists of the two seniormost puisne Judges of the Supreme Court. ...The principal objective of the collegium is to ensure that the best available talent is brought to the Supreme Court bench.”

The judgment also went on to increase the size of the collegium by holding that “we think it is desirable that the collegium should consist of the Chief Justice of India and the four seniormost puisne Judges of the Supreme Court…” Separate Collegiums of three senior judges were provided for the appointment of High Court judges.

Unstable structure

Since the collegium comprised of the most senior amongst the judges, who all retired upon turning 65, its composition was never stable. On an average, a senior judge would normally serve in the collegium for three years or less and would head it for less than a year. Hence, securing judicial appointments through the collegium became a deadly game of musical chairs and Russian Roulette, randomly mixed. Any High Court judge, hopeful of going higher, found himself desperately seeking not to anger any possible member of the collegium. Sometimes, collegiums got stymied, when old rivalries between its members saw each other’s favourites getting vetoed. There were also times that collegium meetings became examples of bargaining within the collective, and consensus emerging from a division of the spoils. In this system, while no single politician could ensure that a candidate became a judge, it was quite likely that a single judge’s wrath could wreck a hitherto promising judicial career.

The resultant appointments by the collegium, can largely be described as middle-of-the-road, with the elimination of most outliers. Thus, brilliance often got mistaken for unsteadiness and vice versa. Seniority became an indispensable shibboleth. Equally, while a reputation for corruption was a disqualifier, lesser evils like tardiness or sloth often got glossed over. Most importantly, decisions on appointments were hugely delayed, as judges resorted to politicking.

But the collegium also ensured that judges were not beholden to any politician. A bold judgment could end up unseating the most powerful of politicians or irretrievably damaging them. Politicians of all hues yearned for the early years of strong governments with huge parliamentary majorities, where judges were sometimes seen, but rarely heard of.

Towards the end of the UPA regime, the government sought to tame judges by demolishing the collegium. It brought in a constitutional amendment to provide for the National Judicial Appointments Commission (NJAC) — an independent commission with three senior judges, two eminent outsiders and the Law Minister. The UPA’s inept parliamentary handling led to a failure of the bill. A commanding NDA victory in 2014 saw the Modi government revive the proposal and Parliament amended the Constitution brought about the 99th Amendment to provide for the NJAC. Subsequent ratification of 20 States was obtained and it seemed that the collegium was history.

Petitions were filed challenging the constitutional amendment. Going by earlier experiences of judicial standoffs, many men of law expected that a constitutional amendment, almost unanimously passed by Parliament, would be rubber-stamped by the Court. Some were hopeful of judicial creativity finding a via-media which, while upholding the amendment, limited governmental interference. When the judgment was delivered on October 15, 2015, it was a decisive blow. The Court by a 4-1 majority, struck down the 99th Amendment. Justice Kehar’s judgment concluded that the NJAC did “not provide an adequate representation, to the judicial component” and that “clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of Judges” It further held that “Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC.” The clause it was held, impinged upon the principles of “independence of the judiciary”, as well as, “separation of powers”. The clause which provided for the inclusion of two “eminent persons” as Members of the NJAC was held ultra vires the provisions of the Constitution, for a variety of reasons.

The four judgments of the majority have reasserted judicial independence with its concomitant autonomy in appointments, as an integral part of the Constitution’s basic structure. No parliamentary majority can amend the Constitution to alter its basic structure and hence the 99th Amendment failed constitutional scrutiny. The court has reinstated the collegium as the clearinghouse of all judicial appointments to the constitutional courts. It has also decided to have further hearings in November to iron out wrinkles in the working of the collegium.

Justice Chellameshwar’s dissenting judgment, has, with strong logic, beautifully worded, upheld the constitutional amendment which scrapped the collegium. Like all dissents, his judgment is an appeal to the future and the powerful brooding spirit of the law. He ended his dissent quoting Macaulay’s dictum, “Reform that you may preserve.”

The Court has now opted to take the path to reform, rather than change to an altogether new road created by Parliament. It is to be hoped that the court’s choice leads not to the dreary desert sands of dead habit, but into ever widening thought and action.

(Sanjay Hedge is a Senior Advocate of the Supreme Court)

Source: thehindu

An atonement gone too far?

July 23, 2015

Arghya Sengupta

It has often been heard during discussions surrounding the 40th anniversary of the 
Emergency in the last month, that the Supreme Court had its darkest hour in this period.

The radical nature of judicial intervention along with the sweeping nature of orders against governments gives rise to the irresistible inference that public interest litigation was the Supreme Court’s way of atonement for its genuflection before government during the Emergency

Hard cases, it is said, make bad law. The adage is widely considered true for the Supreme Court of India which held in the height of the Emergency, in ADM Jabalpur v. Shivkant Shukla that detenus under the Maintenance of Internal Security Act (MISA) could not approach the judiciary if their fundamental rights were violated. Not only was the law laid down unconscionable, but it also smacked of a Court more “executive-minded than the executive”, complicit in its own independence being shattered by an all-powerful government. So deep has been the impact of this judgment that the Supreme Court’s current activist avatar is widely viewed as having its genesis in a continuing need to atone. Expressions of such atonement have created another Court made to measure — this time not to the measure of the government but rather the aggrandised self-image of some of its judges.

It has often been heard during discussions surrounding the 40th anniversary of the Emergency in the last month, that the Supreme Court had its darkest hour in this period. For those not familiar with the history of the Court, it might be instructive to understand why. In ADM Jabalpur, the four judges in the majority, Chief Justice A.N. Ray and his successor Chief Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati handed down a judgment that was fatally flawed in law. Given that the consequences of their error were entirely to the government’s advantage, it was widely viewed as the death of an independent judiciary. The excessively deferential, almost apologetic language used by the judges confirmed this impression.

Life, a bounty of the government

The legal question before the Court was whether as a consequence of a presidential order suspending the fundamental right to life and personal liberty (Article 21) during the operation of the Emergency under Article 359 of the Constitution, detenus who had been put behind bars under the provisions of MISA without any reasons being provided, could challenge their detentions as unlawful in a court of law. The majority held that Article 21 of the Constitution that had been suspended was the sole repository of life, personal liberty and judicial review in the Constitution. Further, that the rule of law in an Emergency would be entirely what the government said it should.

On both counts, the judges were entirely mistaken. While it is an arguable proposition whether there is a right to life and personal liberty in natural law, outside the Constitution, there can be no debate on the proposition that the power of judicial review, i.e. the power of the Supreme Court to examine the legality of executive action does not depend on Article 21. Thus, whether a detention order under MISA was validly issued in terms of the statute itself is a question that the Court must remain competent to adjudicate on notwithstanding the emergency at hand. Otherwise, under the pretext of the Emergency, a government can — and in the case of Indira Gandhi’s government did — round up its opponents in the name of national security. In legal terms, the rule of ultra vires, that the act of government cannot go beyond the power vested in it by the legislature, is hardly a creature of Article 21; it is a principle of common law that predates the Constitution.

“ For an unelected and largely unaccountable institution such as the Supreme Court to be at the forefront of matters relating to governance is dangerous…”

Second, as a court of law, the Supreme Court was called upon in this case to balance the interest of public order in an Emergency with the right to life and personal liberty guaranteed to every person. Nine High Courts called upon to perform the same function had found a nuanced answer by which they had held that the right to life cannot be absolutely subservient to public order merely because the government declared so — the legality of detentions could be judicially reviewed, though the intention of the government would not be second-guessed by the Court. This was a delicate balance. The Supreme Court however reversed this view and made the right to life and personal liberty literally a bounty of the government. If this genuflection did not look perverse per se, in hindsight as the real rationale of the Emergency became apparent, it was devastating for the image of the Court as an independent institution.

Speaking truth to power

It was only the dissenting judgment of Khanna J. that spoke truth to power. On the one hand it did not enquire into the subjective satisfaction of the government as to whether an emergency proclamation was required or whether detention of particular persons was expedient. At the same time, it did not provide a carte blanche to the government, preserving a minimal but significant remit for judicial review to assess whether the legal requirements for detaining a person had been met. As a price for his honesty, Justice Khanna was superseded when by convention he ought to have been appointed the next Chief Justice of India. With Justice Beg accepting the government’s offer in defiance of convention, the Supreme Court looked all too human; yet another institution in India whose independence lay shattered by the government, its reputation in shreds.

Noted scholars have inferred that the Supreme Court’s activist avatar in the 40 years since and particularly prominent today, can directly be traced to this dark episode in its history. Justice Bhagwati, the pioneer of the public interest litigation movement in the Supreme Court publicly apologised for his judgment, rare for a Supreme Court judge. At his behest, the Court came to the rescue of bonded labour, girls in protective homes, undertrial prisoners, minimum wage workers and several other disadvantaged and needy groups in society. The radical nature of such judicial intervention coupled with the sweeping nature of orders against elected governments, makes the inference irresistible that public interest litigation was the Court’s shrewd and humanist atonement for its genuflection before government during the Emergency.

In activist mode

Today, however, while public interest litigation has restored the independent image of the Supreme Court, it has achieved this at the cost of quality, discipline and the constitutional role judges are expected to perform. The Court monitors criminal trials, protects the environment, regulates political advertising, lays down norms for sexual harassment in the workplace, sets guidelines for adoption, supervises police reform among a range of other tasks of government. That all these tasks are crucial but tardily undertaken by government can scarcely be questioned. But for an unelected and largely unaccountable institution such as the Supreme Court to be at the forefront of matters relating to governance is equally dangerous — the choice of issues it takes up is arbitrary, their remit is not legal, their results often counterproductive, requiring a degree of technical competence and institutional capacity in ensuring compliance that the Court simply does not possess. This sets an unhealthy precedent for other courts and tribunals in the country, particularly the latter whose chairpersons are usually retired Supreme Court Justices. To take a particularly egregious example, the National Green Tribunal has banned diesel vehicles more than 10 years old in Delhi and if reports are to be believed, is considering imposing a congestion charge for cars as well. That neither of these are judicial functions and are being unjustly being usurped by a tribunal that has far exceeded its mandate, is evidence of the chain reaction that the Supreme Court’s activist avatar has set off across the judicial spectrum.

Finally, the Court’s activism adds to a massive backlog of regular cases that makes the Indian justice delivery mechanism, slow, unreliable and inefficient for the ordinary litigant. As on March 1, 2015, there were over 61,000 cases pending in the Supreme Court alone. It might be worthwhile for the Court to set its own house in order, concomitantly with telling other wings of government how to do so.

As we mark 40 years of the Emergency and the darkest period in the Supreme Court’s history, it might be time to not single-mindedly harp on the significance of an independent judiciary. Judicial independence, is and must remain a cherished virtue. However, it would be blinkered to not confront newer challenges that damage the credibility of our independent judiciary today — unpardonable delays and overweening judges taking on the mantle of national government by proxy. The Supreme Court 40 years on is a different institution — it must be cognisant of its history but not at the cost of being blind to its present.

(Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy, a New Delhi-based legal policy think-tank.)

Source: thehindu