Is Supreme Court of India under threat?

12 June 2020

08:33 am

Supreme Court (SC) of India is the highest judicial court under the Constitution of India and is an Autonomous Institution. It has extensive powers and is regarded as the most powerful Institution in India. It safeguards fundamental rights of citizens and settles disputes between various government authorities as well as the central government vs state governments or state governments versus another state government in the country. Supreme Court is headed by Chief Justice of India (CJI). Also a Constitution bench which consist of at least five judges of the court which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India or “for the purpose of hearing any reference” made by the President of India under Article 143 is appointed.

Today many experts feel that Supreme Court of India is under threat due to some series of verdicts given by SC and controversies happened on the judgements of SC mostly since 2014 after Modi government has started incursion on Institutions of India. Not only SC but also many regional High Courts which are in the states of BJP/NDA led governments are being impugned since 2014. There were complaints that the Supreme Court did not rise up to its role as a protector of Constitution, when its interventions were most needed. So much so that there were comparisons drawn with the ignominy of the emergency-era Supreme Court. Serious questions about the independence of judiciary is being raised by public.

Here is a recap of the major controversies and events where Supreme Court and High Courts are infavour of government.

1. Ayodhya Verdict- On 09th November 2019, in an unanimous verdict, the Supreme Court held that the entire disputed land of 2.77 acres in Ayodhya must be handed over for the construction of Ram Mandir. At the same time, the Court held that an alternate plot of 5 acres must be allotted to the Sunni Waqf Board for construction of mosque. This direction was passed invoking powers under Article 142 of the Constitution. The Court observed that the destruction of Babri mosque in 1992 was a violation of law. The act of placing idols beneath the central dome of the mosque in 1949 was an act of “desecration“, observed the Court. Even while acknowledging the illegalities committed against the mosque, the Court handed over the property to the Hindu parties in the case, on the finding that they proved a better claim of possessory title. There was criticism that Court’s verdict amounted to rewarding acts of aggression by a party to a litigation. Later, the SC dismissed a string of review petitions filed against the verdict.

2. Supreme Court rejects plea against PM CARES Fund – The Supreme Court on Monday refused to entertain a plea seeking quashing of the decision to set up the PM CARES Fund where people can donate money, to deal with the situation arising out of the COVID-19 pandemic. A bench headed by Chief Justice S A Bobde described the PIL filed by lawyer M L Sharma as “misconceived” and dismissed it in a hearing conducted through video conferencing. The court told the petitioner, Advocate Shashwat Anand to either withdraw the petition or face a fine imposed by the Top Court.

3. Delay in Migrant Workers issue – Every one in this country are aware of the Migrant labourers tragedy. Many migrant workers have been died during lockdown imposed due to Covid-19 pandemic. But Supreme Court has been silent for more than a month and has not taken this petition seriously and went on postponing the hearing. After more than a month when this tragedy is about to end and also after many migrant labourers have been killed, on 10th of June,2020, SC has asked states that ‘Migrant workers should be identified and sent to their hometowns within 15 days‘ adding that ‘all cases registered against migrants who have allegedly violated coronavirus lockdown orders should be considered for withdrawal.’

4. Reservation not fundamental right – The Supreme Court on 12th June,2020 once again said that right to reservation is not a fundamental right while rejecting pleas challenging the Centre’s decision to not grant 50% reservation to OBCs in Tamil Nadu medical colleges. SC has refused to entertain a bunch of pleas filed by various political parties against the Centre’s decision.

5. SC’s stand on Kashmir petitions – The Court showed no sense of urgency in dealing with the petitions challenging the lockdown of J&K imposed in the form of mobile network shutdown, media curbs and other curfew measures. This attracted criticism from the United Nations as well, which remarked that the SC was ‘slow’ in dealing with Kashmir petitions. Likening the situation to the emergency-era Court, Senior Advocate Dushyant Dave wrote- “The court’s handling of these cases is a harsh reminder of the ADM Jabalpur case. More than a million people have been locked down in one of the biggest clampdowns by the Indian armed forces; and all under the cover of Section 144 of Cr.P.C. Article 21 is about life and liberty, and all that the Supreme Court has done is to defer these crucial matters without taking the government to task.”

A three judges bench comprising Justices N V Ramana, Subhash Reddy and B R Gavai reserved judgment in the case challenging Kashmir lockdown on November 27. While the judgment is awaited, the internet shutdown in Kashmir has crossed 150 days, which is reportedly the longest period of internet shutdown in a democracy.

6. 2018 Supreme Court of India Crisis – On 12 January 2018, The Supreme Court of India was in crisis after an interview given by Supreme Court judges Jasti Chelameswar, Ranjan Gogoi, Madan Lokur, and Kurian Joseph, in which they spoke against the Chief Justice of India Dipak Misra that he allocates certain politically controversial cases to such benches which gives favourable judgements towards a political party. The judges mentioned the allocation of the case of investigation of death of Special CBI Judge — BH Loya , who was presiding over Sohrabuddin encounter case, in which the BJP President Amit Shah was the prime accused. On 20 April 2018, seven opposition parties submitted a petition seeking impeachment of Dipak Misra to the Vice President Venkaiah Naidu, with signatures from 71 parliamentarians.

7. Rafale documents stolen – In December 2018, the Supreme Court had turned down petitions seeking an investigation into the aircraft deal, saying that there was no “ocassion to really doubt” the government’s decision-making process. After the judgement, controversies arose over a number of facts presented in the judgement as well as new developments reported by multiple media publications.The Attorney General K K Venugopal’s submission in the Rafale review case that the documents relied on by the petitioners were ‘stolen’ from the Ministry of Defence created a stir. Opposition leaders latched on AG’s statement to attack the Government.

8. CJI Sexual harassment conspiracy – A lawyer, who claimed that a conspiracy was at play to frame Chief Justice India Ranjan Gogoi in a sexual harassment case, has submitted proof to the Supreme Court. Utsav Bains had made the sensational claim that he was offered up to Rs 1.5 crore by a man named “Ajay” to frame a “false case of sexual harassment” against the CJI.Bains had claimed that the man identified as Ajay said he “represented” the former woman employee who had levelled allegations against Justice Gogoi.The Supreme Court said it was taking very serious note of the contents of the affidavit filed by Bains in the suo motu case. Following this, the Director of the Central Bureau of Investigation (CBI), the Police Commissioner, and the Intelligence Bureau Chief have been summoned to the apex court for an in-chamber meeting. Justice Ranjan Gogoi has been accused of sexual harassment by a former employee who worked as a junior assistant at the Supreme Court. In an affidavit filed in the Supreme Court, the former employee alleged that she was terminated from her post following the incident. After the allegations were made, a Special Bench comprising CJI Gogoi along with Justices Arun Mishra and Sanjiv Khanna was immediately convened to look into the matter. Gogoi said the allegations were unbelievable and described the case as of “great public importance touching upon the independence of judiciary”.During the proceeding, Gogoi said that the woman had a criminal record and two FIRs against her. Gogoi was criticised for constituting the bench comprising him, though he had recused himself in the middle of the hearing, leaving it for justices Arun Mishra and Sanjiv Khanna to pass the order.

9. Delay in hearing case on Electoral Bonds – The Court’s lack of interest in hearing the case against Electoral Bonds also come under severe criticism. In declining to stay the operation of the Electoral Bonds Scheme (EBS), citing the fact that the plea for stay had been heard and refused last year itself, the Supreme Court is taking a narrow and technical view. In an order in April 2019, a Bench of the Supreme Court headed by the then Chief Justice of India, Ranjan Gogoi, had asked political parties to disclose to the Election Commission of India (ECI), in sealed covers, details of the donations they had received through the anonymous bonds. Given the “limited time” available then and “the weighty issues” involved in the matter, it declined to grant a stay. However, it is quite disappointing to note that nine months on, the court remains unmoved by submissions that a fresh window for purchase of bonds is set to be opened soon, coinciding with the Delhi Assembly election and that the scheme itself was being frequently opened so that the ruling party would stand to benefit. Fresh revelations suggest that the Reserve Bank of India and the ECI had voiced their reservations about the scheme, which was enabled by provisions of the Finance Act, 2017, and introduced in 2018. The Association for Democratic Reforms, the petitioner, has disclosed that an overwhelming majority of the donations made through electoral bonds had gone to the Bharatiya Janata Party. Further, the ECI has already made clear its strong opposition to the various amendments to the law on contributions to political parties.

Its the duty of public to save the autonomy of Supreme Court atleast now.


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