The increasingly troubling instances of our Apex Court folding to the pressure put upon it by the executive branch of the Indian Government mark an ill-turn for our democracy
Anguish overwhelms all those who still trust the essence of the song 'Hoton pe sachchaayi rehti hai; jahan dil me safayi hoti hai; ham us desh ke vasi hain.....Jis Desh me Ganga behti hai', when they find that amidst the cacophony of the rhetoric of blatant lies of those in governance and the ongoing drubbing of Indian democracy and institutions, these virtues stand buried. Once in power, they assumed the status of a god, rendering the Constitution secondary. But, tragically, people find themselves helpless, since even the election process can be rigged. Therefore, all eyes are expectantly riveted on the Supreme Court.
The crisis is serious. Democracy is being convoluted with tenets of authoritarianism, democratic institutions are being made 'captive' and defanged by planting 'yes men' who would readily discard their mandated responsibility to make course corrections. The media is being converted into state-controlled propaganda machinery; FIRs are being registered against reticent journalists, like Vinod Dua, for speaking the truth. Religious minorities are being targeted through lynching, encounters, maligning them as antinational, etc. Freedom of speech and expression is being throttled, intellectuals and others who oppose government policies are being persecuted by spying on them with the use of Pegasus-like software, and labelling them as 'urban Naxals'. While discarding debates and discussions, political opponents are bulldozed with the use of CBI, ED, IT, etc. Not even the education sector is being spared, with NCERT pushing nationalistic agenda through its curriculum. Importantly, every unethical and corrupt means is blatantly employed to encourage political defections to expand the ruling party's saffron power.
Furthermore, grandeur and megalomaniacal rhetoric are underplaying the pathetic plight of the poor and unemployed, as government-friendly crony capitalists and fraudsters reap the cream. Many MNCs together have defrauded Rs 8.55 lakh crores of public money in banks.
As a result, in three years, India has slid by 50 notches in 'Democratic Traditions' to be at 91 among 180 countries, underscoring the necessity for the SC to help in course correction, since people are helpless. Can they, when a powerful leader finds ways to skirt the Supreme Court's orders?
It happened in 1973, when, in the Kesavananda Bharati's case, the SC upheld the Right to Property as a Fundamental Right, and also laid down that 'the basic structure of the Constitution cannot be altered by the Parliament since its amending power is limited.'
SC acting as the guardian of the Constitution enraged Indira Gandhi, who decided to become the custodian of the SC itself, and soon appointed Justice AN Ray, one of the dissenting judges, as the CJI, by superseding four others. And lo! Supreme Court prostrated to her, especially during the days of Emergency.
When the Allahabad HC disqualified her election and debarred her from contesting for 6 years, and when the vacation judge Krishna Iyer modified it on June 24, 1975, only to the extent of allowing her to continue as PM, but debarring her from taking part in parliamentary proceedings and drawing a salary as MP, she got the Emergency proclaimed the very next day, declaring, "Security of India threatened by internal disturbances." Press censorship was imposed. Right to life and liberty was gored to death.
Soon, in the ADM Jabalpur matter, the five-member bench headed by Justice AN Ray set aside the order of the full bench of the HC, saying "During an emergency, Article 21, the right to life and liberty, is not applicable, and it stands invalidated." The single dissenter, Justice KR Khanna, who questioned, "Can right to life be denied to citizens during an emergency?", was denied elevation as the CJI later in a vulgar display of her supremacy.
Similarly, when Mrinal Gore was kept in an isolated dark place, the judges of the Bombay HC observed, 'Whatever is the political situation in the country, citizens have a right to appeal in the court under Article 226'. However, the CJI, Justice AN Ray, overruled all such judgements, and Habeus corpus cases were declined admission, revealing the abject submission of the SC to a new god — the government.
It is an irony that, years later, the traumatic time of Emergency was recalled by Arun Jaitley, saying, "Various institutions, especially the SC were snatched of independence," while, under no such emergency, the present regime pushed the country grossly into a similar situation. That there is something remiss with the supreme regulator, is reminded in the books, 'God Save The Honourable Supreme Court' by Fali Nariman, and 'Loose Pages' by Sourava Majumdar and Paranjoy Guha Thakurta. Describing how in the past, judges glared, snorted, even snarled, all in a nice way and for a good cause, they lucidly explain how the present Government believes in the era of 'captive regulators', the SC being one among them.
Independence of Judiciary is what the entire country expects to have. Yes. Those who are forthright in upholding the law are punished. Hurdles were put for the elevation of Justice KM Joseph for quashing President's rule in Uttarakhand and Justice Muralidhar was transferred out overnight for his orders for FIRs for hate-speeches that led to Delhi riots, and now, Gujarat HC judges were relieved from hearing a matter when they spoke against the BJP-ruled State Government. As it stands, a series of discordant notes emanating from the SC in recent rulings have been worrying people and confirming that not all is well with our 'Watchdog'.
Unfortunately, in addition, there are several critical issues that are being brushed under the carpet, the most important being the allegations of EVM scam since vitiation of the electoral process shakes the very foundation of democracy.
Based on several records, it was alleged that during the 2019 elections, 20 lakh EVMs were missing, there were serious discrepancies in counted and polled votes in 374 constituencies, and that instead of providing convincing answers to the country, the Election Commission silently destroyed VVPAT documents without even reconciling the facts. Yet, the matter is gathering dust in the SC.
Another example is the FIR against Mukesh Ambani for the Rs 50,000 crore gas fraud in the Krishna-Godavari basin. In order to protect the accused, the Government took away the ACB from the Delhi Government five years ago and stalled the investigations till now. And, the SC is yet to decide the issue of restoring the ACB to the State Government.
'Bail, no jail' was the mantra of Justice Krishna Iyer that has been guiding the SC for years, until the present regime came to power. Now, the SC tried to have a saving grace in the matter of the horrible plight of migrant workers, only after several high courts emphasised the Right to Life, and many legal luminaries along with former judges wrote a nasty letter to the SC about its inaction.
More importantly, SC is yet to intervene strongly when the crime of corruption and fraud on democracy is being blatantly committed in political defections engineered often by the ruling party with intimidations and inducements.
The country is conscious of the fact that judges are also humans, with all their strengths and frailties; susceptible to pressures and inducements, and intimidations. Moreover, they need to depend on the government in power, a self-styled all-powerful god and the provider, for resources and appointments.
But, the SC cannot underplay its role as the protector, ts role to get all 'captive institutions' released from the shackles of the provider, so that they would play their mandated roles since Indian democracy is in a real crisis. Like Shani of our pantheon of gods, it may gather the courage to punish even the usurper of powers, masquerading as the provider, to enforce justice.
The writer is a retired IPS officer and a former Member of Public Grievances Commission, Delhi. Views expressed are personal