If the Indian judiciary, the highest to the lowest, pursued any one relentlessly for a decade, it was Narendra Modi. The Supreme Court instituted a Special Investigation Team [SIT] to investigate riot cases, brought in the CBI to probe the Sohrabuddin and Ishrat Jahan cases, choosing just the two out of hundreds of encounters throughout the country. While the SIT did an honest job, the CBI did a thoroughly dishonest probe under the very nose of the Supreme Court. In August 2011, The New Indian Express carried three explosive articles [“Sohrabuddin: Interrogating the Media”; “Fixing Shah, by Fabrication”; and “How CBI Betrayed Court to Save Congress”], exposing how the CBI was dishonestly using the Supreme Court’s clout to fix Amit Shah and if possible Modi himself. The New Indian Express articles established how the CBI was lying on affidavit and orally to the court contrary to the evidence it had procured. The final sentences of the concluding article of The New Indian Express were: “This is not the epilogue. Only an honest and independent judiciary can write an epilogue to this perfidy.” This short conclusion tells what volumes cannot.
>>Related: Narendra Modi and the National Discourse-I
The media, intellectuals and the rest hounded Modi. Now, cut back to 1984 when, after the assassination of Indira Gandhi, over 2,000 Sikhs were slaughtered in Delhi over several days. The then Congress Prime Minister even rationalised the killings later, saying that when a banyan tree fell, the earth was bound to shake. No ‘secular’ leader or party questioned him. No court did. No Sahitya Akademi awardee returned the award. No court set up any SIT and monitored the probe. Not a clear contrast?
Judiciary 1971 to 1977
Now, perceiving the National Judicial Appointments Commission (NJAC) law as an attempt by the Modi government to tread on the judiciary’s toes, the Supreme Court has struck it down totally. While so doing, the court needlessly recalled Emergency and indicated that except during Emergency in 1975-77, the Supreme Court had been a bulwark of freedom and therefore its independence is sacred and inviolable. Did the judiciary fail only during Emergency? Read on.
When in the Golaknath case (1967) the judiciary outlawed Parliament’s right to amend the fundamental rights and later (1970) stuck down the nationalisation of banks and the abolition of privy purses, its conflicts with the government started. The Indira Gandhi government, after winning the 1971 elections, amended the Constitution and asserted Parliament’s right to alter the fundamental rights. In 1973, the SC (Kesavananda Bharati case) allowed Parliament to amend but not hurt the basic structure of the Constitution. Within hours of the judgment, PM Indira Gandhi superseded three judges who had decided against her government.
Within hours of the judgment, Prime Minister Indira Gandhi superseded three judges who had decided against her government and made Justice A N Ray the chief justice — as reward for his siding with the government’s view in Bank Nationalisation, Privy Purse and Kesavananda cases. Had A N Ray refused the bait or resigned like his three seniors, the judiciary would have won and not become, as it had, psychologically subdued and weak. This setback did have an impact on the conduct of the judges during Emergency and later.
Ten High Courts had ruled that Right to Life could not be abrogated by Emergency. But, the Supreme Court, except Justice H R Khanna, happily held that the Right to Life stood suspended during Emergency. Forthwith H R Khanna was superseded and M H Beg made the chief justice. Had Justice Beg refused to supersede Khanna, judicial independence would have been asserted. That was judiciary’s second failure.
1977-80 vs 1980-89
Then came Janata Party rule. The Supreme Court, which had denied citizens their Right to Life under Art 21 during Emergency, went on to include their right to foreign travel in Art 21 and held the denial of passport to Maneka Gandhi by the Janata government as unconstitutional. This was in January 1978. Assuming that the political class had not worked and the masses had not voted and defeated Indira Gandhi in 1977 and that George Fernandes’ passport was the issue, would the court have read the Right to Passport in Right to Life in Art 21 would be a moot point.
With Indira Gandhi out of power, judicial independence was in full flow. Indira Gandhi returned to power on January 14, 1980. See what happened. On the very next day, Justice P N Bhagwati, in line to become chief justice, wrote to her: “You have become the symbol of the hopes and aspirations of the poor, hungry millions of India.” He praised her “iron will and firm determination”, “uncanny insight and dynamic vision”, “great administrative capacity and vast experience”, “over-whelming love and affection of the people” and “above all” her “heart which is identified with the misery of the poor”. He concluded: “Today the reddish glow of the rising sun is holding out the promise of a bright sun-shine.” The rising ‘sun’ was an indirect reference for the rising ‘son’ — Sanjay Gandhi.
After the letter was published by the Indian Express, a shocked Justice Tulzapurkar said: “If judges start sending bouquets or congratulatory letters to a political leader on his political victory, eulogising him…in adulatory terms, the people’s confidence in the judiciary will be shaken.” The country was no more under Emergency then. And yet the senior most judge in line to become the chief justice wrote such a shameful letter.
Soon, in the first judges case, Justice Bhagwati handed the total power to appoint and transfer judges to the Indira Gandhi government precisely as it had demanded. And Indira Gandhi, who had superseded seniormost judges twice earlier, promptly elevated Justice Bhagwati as chief justice. Arun Shourie, writing in the Indian Express, quoted Justice Jackson who said: “Judges are more often bribed by their ambition and loyalty than by money.” How apt! If Justice Bhagwati had dissented like Justice H R Khanna or decided the first judges case against the government, would he not have met the fate of Justice Khanna?
1993 and 2015
The surrender to the Indira Gandhi government in the first judges case was reversed by the second judges case in 1993, swinging the pendulum to the other extreme in the process. Had Indira Gandhi been Prime Minister then, and not Narasimha Rao, whether this would have happened is difficult to say. Justice J S Verma’s judgment devised the Collegium system for judicial appointments. The NDA government just got some clarification from the Supreme Court in 1999 as to how the Collegium would work.
With the Collegium system, which worked in secrecy, failing miserably in judicial appointments and accountability, the Modi government brought the NJAC law as a joint project of the Judiciary and the Executive, in line with Justice Verma’s later view, to make the appointment transparent and judiciary accountable. The law may have had its minuses, but it could have been “read down” by the court to conform to the safeguards needed for judicial independence. But the court struck down the law in its entirety and claimed that judiciary is a reliable safeguard against Emergency, when in 1976, the Supreme Court had actually institutionalised Emergency. Who then packed off Emergency and those who imposed it and brought democracy back, for the courts to become independent again?
Exceptions
There were four exceptions to the national surrender to Emergency dictatorship. First, the heroic fight of Ramnath Goenka and Indian Express, and also the Statesman — the only two papers to stand up to the law-less regime, with the rest crawling. Second, strangely the very politicians whom the media and the court deride today resisted Emergency, languished in jail for 18 months, sank all their differences and formed the Janata Party, overthrew Emergency and buried it by amending the Constitution so that it could never be imposed again. In contrast, the judges did not even refuse the out-of-turn positions offered to them. Third, ironically it is the very RSS which the ‘seculars’ see as the villain today which strategically fought Emergency — like Ramnath Goenka did — misleading Indira Gandhi with peace moves on the one hand and on the other hand dynamiting her dictatorship by huge underground movement. Jayaprakash Narayan even said that if the RSS was fascist, he too was one. Fourth, the less literate people of particularly northern India binned Emergency regime in the 1977 elections — with the more literate South India endorsing it.
Yet, today, those who fought Emergency are described as fascists and those who imposed it, justified it or ducked fighting it, are celebrated as the fighters for democracy! Can the discourse be more laughable?
Post Script: Most of the ‘secular’ leaders, media and intel-lectuals were supporting Emergency. Some 34 intellectuals had accepted the honour of Sahitya Akademi awards during Emergency. Two of them — Sarvepalli Gopal and Bisham Sahni — were even ‘secular’ icons. Ghulam Nabi Khayal, who got it then, has now returned the award against the emergence of fascism!
S Gurumurthy is a well-known commentator on political and economic issues. Email: comment@gurumurthy.net
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