Supreme Court’s Journey from UPA to NDA

NEW DELHI: During the last phase of the United Progressive Alliance government the Supreme Court had unprecedented acceptability among the people.

Back then the government’s allocation of spectrum was declared illegal, as were all coal allocations made between 1993 and 2010. The court spoke for the independence of the Central Bureau of Investigation and also struck down the appointment of PJ Thomas as central vigilance commissioner. The government was pressed to ensure transparency in institutions and the Bharatiya Janata Party welcomed these decisions.

The Comptroller and Auditor General had a field day computing possible losses including the loss incurred by not allocating spectrum by auction. As we now know a constitution bench of the Supreme Court found auction not to be the only viable method of allocating public natural resources.

The anti-corruption movement saw among others a certain baba-industrialist taking over television studios. The UPA crumbled. In parliament the Congress was reduced to 44 seats. The BJP formed the government in May 2014.

As we enter the last phase of the National Democratic Alliance government, the same Supreme Court is suspect. Commentators now find the court is exceeding its constitutional role.

In June 2014, then CJI RM Lodha recommended that lawyer Gopal Subramanium be elevated to the Supreme Court. The government proceeded to attack him on personal grounds, forcing him to withdraw his recommendation. Subramanium wrote an open letter stating that the prime minister must welcome independent voices. CJI Lodha, who was in the United States at the time, was left helpless and on his return could do no more than express concern at the reaction of the executive to a Supreme Court collegium recommendation.

Very early on the government made clear it was in no mood for the court’s prescriptions on governance. In August 2014, to avoid any such hassles the newly elected majority moved the 99th Constitutional Amendment declaring the collegium a nullity and appointing a National Judicial Appointments Commission for selecting judges. This commission would have had members of political parties and political nominees who could have vetoed nominations made by judges. Political lobbying would have been institutionalised.

In October 2015 a bench of the Supreme Court headed by Justice Khehar struck down the NJAC Act as being unconstitutional. However the bench was open to establishing a memorandum of procedure in consultation with the executive to govern appointments. Finalising the procedure became an excuse for the executive not to appoint judges. Soon after, Arun Jaitley the finance minister termed the court’s ruling the tyranny of the unelected.

In 2016 Chief Justice TS Thakur was reduced to tears at a public forum, as collegium recommendations remained stalled with vacancies in constitutional courts going up from 30% in May 2014 to 44% in 2016. This was only the beginning of the attack on the judiciary.

When Justice Dipak Misra took over as CJI, insinuations were made that sensitive cases relating to the government or its officials were being sent to particular judges. In January 2018 the collegium held a press conference. This was an aberration in the life of judges, defined by institutional facelessness. They pleaded with citizens to save democratic institutions, saying democracy was in peril. The executive was unperturbed. The leader of the collegium Justice Chelameswar, the lone dissenter who had previously been praised for upholding the NJAC’s validity and the BJP Haryana government’s policy on forbidding those without toilets in their homes to contest elections, was now labelled a troublemaker.

In September 2018, in a shocking move, the attorney general asked collegium member Justice Lokur to recuse himself from the case regarding extrajudicial killings by the armed forces in Manipur. This even though there was evidence from local investigations as well as the CBI, resulting in chargesheets against armed forces personnel for killing innocent civilians. The government’s attack on Justice Lokur undermines public trust in India’s democracy, which will only be strengthened by investigating fairly the loss of civilian lives seeking justice.

Meanwhile, refugees’ rights cases still under judicial consideration are openly mocked by the executive. BJP spokespersons cheerfully sneer at people seeking asylum from genocide as ‘terrorists’. Such trivialising of constitutional commitments and international human rights obligations necessary for a modern democracy has become routine.

The Sabarimala case has been interpreted by the executive as a judicial order impinging on Hindu beliefs, when it is about every Hindu woman’s right freely to express her devotion to god. The BJP’s Kerala state president has openly admitted to having orchestrated the protests. The ruling party continues to instigate people against the apex court’s order.

Then in the Ram Mandir matter the court’s decision to hear it at a later date has led the government to whip up communal sentiment claiming institutional discrimination against Hindus. Even as the matter remains under judicial consideration, BJP members insist the temple will be erected at the disputed site. It appears the views of the court matter little to the present regime. The open defiance of court orders regarding the restriction on firecrackers also showed clear attempts to communalise decisions of the judiciary.

The executive seems to disagree with the court’s interpretation of constitutional principles in cases involving religious freedoms. The executive’s populist positions are creating an atmosphere of distrust towards constitutional institutions. This is not how responsible governments engage with the findings of independent institutions.

I recall walking out of a late night conference with the additional solicitor general in February 2014, and being told by telecom ministry personnel that there was no point now taking decisions on cases. Best leave it to the next government. The Congress is done. In that case the executive through the ASG argued for the CAG’s right to audit private telecom companies. The court allowed such audits in April 2014.

The legality of the argument and its impact on the economy is a different issue. My point is one of institutional autonomy and the integrity of systems. That the CAG could hold press conferences against the government, and the ASG representing the Union of India could defend the CAG’s right to audit big industry, even as the government collapsed, was testament to the fact that institutions operated independent of political strength and will.

Institutions need to be in good health. They lift the veil on government business and help the electorate make an informed political choice.

Abhik Chimni is a lawyer in New Delhi.