During Modi years the SC presented a meeker version when it came to dealing with cases which could prick the political interests of the ruling party. The verdicts in politically charged cases such as Sahara-Birla, Loya, Bhima-Koregaon, Rafale, Aadhaar etc have invited a lot of criticism that when it comes to taking on the system, the Court acts hesitant.
Sahara-Birla papers case
The first one of such challenges was posed by the Sahara-Birla papers case. It was a PIL filed by the NGO Common Cause seeking a court monitored probe in respect of documents retrieved by the Income Tax department while raiding offices of the Sahara and Birla group of companies, which allegedly had entries suggesting giving crores of rupees as bribe to Narendra Modi and other BJP leaders.
The writ petitioner sought registration of FIR and court monitored probe, based on the dictum in Lalithakumari’s case that registration of FIR is mandatory when a complaint revealing cognizable offence is lodged.
The bench of Justices Arun Mishra and Amitava Roy dismissed the petition. But it was not a simple dismissal. The court aborted the issue once and for all, by declaring that the “materials in question are not good enough to constitute offences to direct registration of FIR”. The court could have simply dismissed the case, asking the petitioner to avail other statutory remedies. Instead, the court went on to adjudicate the merits of the matter, and held that the diary entries are not admissible in evidence as per Section 34 of the Evidence Act. The admissibility of the documents is not an issue which is to be looked into at the stage of investigation.
That issue arises only during the trial of the case. Only a full-fledged investigation can unearth other materials which can substantiate entries in the documents. Therefore, to abort investigation on the ground that documents are not admissible in evidence is like putting the cart before the horse. To decide whether to order investigation, the Supreme Court applied the yardstick of a trial court with regard to admissibility of evidence. The judgment appeared to be against the well established legal principle that for registration of FIR, allegation of cognizable offence is sufficient.
The Court’s approach was in stark distinction with its earlier approach adopted in the 2G case, where a court monitored probe was ordered on the basis of materials produced by the petitioner-NGO.
Loya case
Similar thing happened in the Loya case too, which was equally controversial with high political stakes. The case pertained to suspicions raised about the death of CBI judge B.H. Loya, who was hearing the Sohrabuddin encounter case in which BJP chief Amit Shah faced conspiracy allegations.
Not only did the Court dismiss the petitions seeking independent probe into judge Loya’s death, but the court conclusively held that he died of natural causes. Constitutional lawyer Gautam Bhatia has commented that the judgment “reads like a trial court judgment that has been delivered without a trial”. The judgement authored by Justice D.Y. Chandrachud (for the bench of himself, CJI Dipak Misra and Justice Khanwilkar) placed unverified trust on the statements of judicial officers, who had said that Loya had died of natural causes.
The court refused to allow the cross-examination of those judicial officers. The court ought to have seen that the petitioners’ were praying for an independent investigation, and for ordering an investigation, it was enough to raise reasonable suspicion of commission of offence. There is no need to establish the offence with all materials for seeking an investigation. But all the questions were shut down with the “discreet enquiry report” produced by the state government, which was opposing the investigation tooth and nail.
The judgement, with its constant invocation of the theory that judicial officers will not make false statements, fails to satisfy an inquisitive and discerning mind. The conclusive findings are arrived at without following any fair process. The court ought to have borne in mind that it was closing the issue forever by its conclusive findings. Therefore, it was ethically incumbent on the court to hear the views of all stake-holders, like the family members of Judge Loya, reporters of the Caravan magazine who brought out the issue, etc before putting a permanent quietus to the issue. But such considerations of fairness and transparency were totally ignored by the SC.
Bhima Koregaon
The Bhima Koregaon case related to a PIL filed by Romila Thapar and four other eminent persons seeking SIT investigation over the UAPA charges against five activists Sudha Bhardwaj, Gautam Navlakha, Vernon Gonsalves, Varavara Rao and Arun Ferreira on the ground that investigation by Maharashtra police was biased. The case was dismissed by 2:1 majority, with the dissent of Justice Chandrachud.
While the majority opinion of the then CJI Dipak Misra and Justice Khanwilkar endorsed the probe by Maharashtra police, Justice Chandrachud disagreed saying that it was a case of arrest targeting political dissent. The majority opinion omitted from consideration certain facts which acted as heavy influencers in the dissent of Justice D.Y. Chandrachud.
While the majority opinion is on set of facts ‘A’, the dissenting opinion is on set of facts ‘A+B’. The majority opinion does not care to state why the additional facts ‘B’, which caused the dissent, are not applicable or totally irrelevant for consideration. The majority was blissfully blind to those facts!
The dismissal of the case gave momentum to the ‘urban naxal’ narrative tailored by anti-constitutional propagandists to label those who question government policies.
Rafale case
In the Rafale case too, the approach of the court was not above criticism. While declining to order probe into corruption allegations over the deal by citing the limited scope of judicial review over defence deals, the court declared that decision making process was proper, accepting the government’s version on pricing and concluding that government did not interfere in selection of Reliance as offset partner.
To analyse the issue whether the alleged procedural irregularities in the deal gave raise to doubts of corruption, which warrant a court-monitored probe, there was no need to review the merits of the deal.
However, the court went on to do that. When there are conflicting versions of facts presented by two sides, the proper course would have been to entrust the job of facts collection to an independent agency. Instead, the court took the denial of one of the contesting parties at face value and sealed the issues with a seemingly conclusive force.
However, the court soon landed itself in embarrassment, as the government said that the judgment contained factual errors and required correction. The observations in the judgment regarding CAG tabling a report on the pricing details of the deal, and Parliamentary Accounts Committee verifying the same were termed as a misunderstanding of the information supplied by the government to the court in a sealed cover.
Since the court has decided to give a detailed hearing in open court to the review petitions, it is inappropriate to comment more. The court has decided to consider the review petition on merits, rejecting the objections of Centre against use of ‘privileged’ documents produced by petitioners in evidence.
CBI-Alok Verma
CBI-Alok Verma was a case of justice delayed. The case presented a straightforward question: whether divesting Alok Verma of the powers of CBI director amounted to his removal from the post, which needed sanction of the High Powered Selection Committee as per the Delhi Special Police Establishment Act. The CJI-led bench initially sought for the details of the corruption allegations against Verma in sealed cover. Later, the court chose to restrict itself to the point of need for sanction from Selection Committee, without touching on the merits of allegations.
When the court directed his reinstatement on January 10, it was too late, as Verma had only three weeks left in his term. The reinstatement was made subject to the sanction of Selection Committee. Anyhow, the delay in the case ensured that the powers that wanted Verma out of the director post succeeded in doing so without facing legal consequences.
Another disturbing concern is that of the revelations by judges regarding executive interference in administrative matters of judiciary such as appointment and constitution of benches.
Emboldened by its brute majority, the Modi government has embarked on open confrontation with the judiciary over several matters. The collision course with the political wing over five years has left the judiciary battered and enfeebled. Coupled with it, the controversies emanating from the court (medical college bribery case, master of roster issue, impeachment motion against former CJI Dipak Misra) made it look like a divided house and resulted in the erosion of moral authority it once enjoyed among public.
At the same time, it will be an overstatement to say that the Supreme Court did not exhibit its reformist spirit to uphold constitutional values during this period. Subdued it may have been; but not totally extinguished.
To sum up, after five years of Modi rule, we see the Supreme Court timid, tentative, fragmented and vulnerable, wary of hurting the central executive which has grown mighty in strength.
Last September, Amnesty International suspended its operations in India because of what Rajat Khosla, the group’s senior director of research, described as “an onslaught of attacks, bullying, and harassment by the government in a very systematic manner.” Human Rights Watch, in its 2020 survey of India, described a raft of “politically motivated cases . . . against human rights defenders, student activists, academics, opposition leaders, and critics.” Journalists, too, have been arrested, threatened, and beaten by mobs or by the police for reporting on the government’s handling of covid-19. Freedom House, an N.G.O. that promotes democracy, recently downgraded its ranking of India from “free” to “partly free,” citing a “multiyear pattern in which the Hindu nationalist government and its allies have presided over rising violence and discriminatory policies” against the country’s large Muslim minority, while also pursuing “a crackdown on expressions of dissent by the media, academics, civil society groups and protestors.”
Indian governments have long used convoluted tax and police investigations to pressure political opponents. Yet, as Modi has consolidated power, his government’s attacks on civil society have exceeded any imposed since the Emergency. Not even Sikh men merely serving food to anti-CAA protesters or putting up langar are being spared. From terrorism to dacoity, all kinds of charges are being drawn to use prosecution as an opportunity for persecution. A good doctor in Uttar Pradesh, Kafeel Khan, is in jail because he dared to speak against the Home Minister of India in the context of the Citizenship (Amendment) Act (CAA). His bail hearings keep getting deferred again and again. The process is the punishment, because even an executive-minded judiciary may find it difficult to convict people for merely exercising their constitutional rights of free speech and protest.
The Modi government did the same in Kashmir after it unilaterally made drastic constitutional changes to the status of Jammu and Kashmir on 5 August 2019. Top leaders such as Farooq Abdullah and Omar Abdullah spent months in house arrest, and many continue to be under house arrest or in prison, including former chief minister Mehbooba Mufti. All of this just to make sure there are no voices protesting the constitutional changes.
