By P.K.Balachandran
Colombo, August 29 – India’s higher judiciary has been in turmoil for some time now. In January 2018, four top Supreme Court judges held a press conference in New Delhi to say that there was an urgent need to reform the judiciary to save democracy.
Justices J. Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph protested against the “unilateral and biased” decisions of Chief justice Dipak Misra in the allocation of “important cases to junior judges.”
They said many “less than desirable” things had also taken place.
However, Justice Gogoi fell out with his colleagues and, as Chief Justice, gave pro-government verdicts in controversial cases such as the one relating to Babri Masjid/Ram temple in Ayodhya, the purchase of Rafael fighter aircraft and the abrogation of Art 370 vis-à-vis Kashmir.
Apparently in return for his favourable verdicts Gogoi got nominated to the Rajya Sabha, the upper House of the Indian parliament. He defends the BJP government.
Vice Presidential Election
Presently, the turmoil is over two issues: (1) the ideology of Justice B.Sudershan Reddy, who is the candidate of the opposition INDIA alliance in the September 9 Indian Vice Presidential election, (2) the alleged over-representation of Gujarat State in the Supreme Court. The governmental heavy weights, Prime Minister Narendra Modi and Home Minister Amit Shah are both from Gujarat.
Justice Sudershan Reddy was part of the two-member Supreme Court bench which gave a landmark judgment in July 2011 that banned a State-sponsored anti-Naxalite militia called Salwa Judum (Peace March) in the Bastar district of Chhatisgarh State in Central India.
The bench comprising Sudershan Reddy and S.S. Nijjar declaredSalwa Judum to be unconstitutional on the grounds that the State could only use its regular police and armed forces to quell rebellions and not a non-State armed group.
Since the now retired Justice Sudershan Reddy has become the candidate of the opposition INDIA alliance in the Vice-Presidential election, the Bharatiya Janata Party-led Union government launched a campaign against him dubbing him as “anti-national” because he had banned the Salwa Judum that had been tackling the Naxalites with an iron hand.
Home Minister Amit Shah’s Charge
Last week, Union Home Minister Amit Shah said, “If the Salwa Judum judgment had not been given, Naxalite terrorism would have ended by 2020. He (Sudershan Reddy) was inspired by the Naxal ideology.”
Shah’s indictment created a storm in the community of former Justices of the Supreme Court and High courts, who rose to Justice Sudershan Reddy’s defence.
A group of 18 retired judges issued a joint statement against the Home Minister describing it as “prejudicial misinterpretation” which would have a “chilling effect on the judges of the Supreme Court, shaking the independence of the judiciary”.
The signatories included former Supreme Court justices Kurien Joseph, Madan B. Lokur and J. Chelameswar, seven other retired judges of the Supreme Court, three former Chief Justices of High Courts — Govind Mathur, S. Muralidhar and Sanjib Banerjee. The other signatories included former High Courts judges Anjana Prakash, C. Praveen Kumar, A. Gopal Reddy, G. Raghuram, K. Kannan, K. Chandru, B. Chandrakumar and Kailash Gambhir. Prof. Mohan Gopal and senior advocate Sanjay Hegde had also signed the statement.
They described Shah’s remarks as “name-calling” which ought to be avoided.
“While the campaign for the office of the Vice-President of India may well be ideological, it can be conducted civilly and with dignity. Criticising the so-called ideology of either candidate should be eschewed,” the 18 retired judges said.
“Prejudicial misinterpretation of a judgment of the Supreme Court by a high political functionary is likely to have a chilling effect on the judges of the Supreme Court, shaking the independence of the judiciary,” they added.
The opposition Congress party criticised Shah. In a post on X, Congress communications chief Jairam Ramesh said, “The Union Home Minister has two WMDs — a Weapon of Malicious Defamation and a Weapon of Mischievous Distortion.”
Ruling Party Hits Back
The BJP-NDA government did not take long to hit back. It got 56 ex-judges to criticize the 18 judges’ statement. The signatories included former Chief Justices of India Ranjan Gogoi, a nominated Rajya Sabha member, and P. Sathasivam; and retired Supreme Court judges A.K. Sikri and M.R. Shah/
“It has become a predictable pattern, wherein every major political development is met with statements from the same quarters. These statements are determined to cloak their political partisanship under the language of judicial independence. This practice does a great disservice to the institution we once served, as it projects judges as political actors. This erodes the dignity and neutrality that the office of a judicial officer demands,” the former judges said.
“A fellow retired judge has chosen, of his own volition, to contest the election for the office of the Vice President of India. By doing so, he has stepped into the political arena as a candidate supported by the Opposition. Having made that choice, he must defend his candidacy like any other contestant, in the realm of political debate. To suggest otherwise is to stifle democratic discourse and to misuse the cover of judicial independence for political convenience,” the 54 former judges read.
“Judicial independence is not threatened by the criticism of a political candidate. What truly tarnishes the reputation of the judiciary is when former judges repeatedly issue partisan statements, giving the impression that the institution itself is aligned with political battles. As a result of these tactics, because of the fault of a few, the larger body of judges ends up being painted as partisan coterie. This is neither fair nor healthy for India’s judiciary or democracy,” the judges said.
They called upon “brother judges to desist from lending their names to politically motivated statements and let those who have chosen the path of politics defend themselves in that realm. The institution of the judiciary must be kept above and distinct from such entanglements.”
Sudershan Reddy’s Retort
Reacting, Justice Sudershan said that the Salwa Judum judgement could not be attributed to him personally. “It was a Supreme Court judgement,” he pointed out.
And at a press conference in Chennai, Reddy refused to be drawn into a discussion on his rival, the ruling party candidate, C.P. Radhakrishnan, saying that he was fighting the election on his agenda not on the demerits of the rival candidate.
“I am fighting to uphold the Indian constitution, as by law established. That’s it,” he told a questioner.
Salwa Judum Case
In 2005, the tribals of Bastar, started “Jan Jagran” (public awareness), a peaceful movement against Naxalites or Maoists who were forcing them to join a violent movement against capitalists and the government. The apolitical tribals found themselves sandwiched between two violent groups, the Naxalites and the security forces.
Soon, Jan Jagran metamorphosed into the Salwa Judum, an euphemism for a state-sponsored militia. With the result, Bastar witnessed extreme violence from 2005 to 2011, in which 422 Maoists, 1019 villagers and 726 security personnel were killed. Several villages were burnt and many tribals were displaced. The Chhattisgarh government was then led by the BJP.
Justice B. Sudershan Reddy was part of the Supreme Court Bench along with Justice S S Nijjar, which, in July 2011, ruled that the SalwaJudum was illegal and unconstitutional.
The main petitioner in the Salwa Judum case before the Supreme Court, sociologist Nandini Sundar, told The Indian Express, “It was an illegal state-sponsored vigilante movement. Hundreds of villages were burnt down, about a lakh were displaced to Andhra Pradesh or Telangana, hundreds were killed, and many women were raped. Half-a-lakh people were forcibly kept in camps. This is an unforgettable chapter in the history of Bastar in terms of the scale of human rights violation. In the past 20 years nobody has been compensated for their burnt houses. Nobody has been prosecuted.”
According to peace activist Shubhranshu Choudhary, “Salwa Judum was a new version of an age-old military strategy called Strategic Hamleting. It was used in Telangana quite successfully against the first Communist (Maoist) uprising between 1946-51.” The British used it in Malaya to fight the communists.
Imbalance in Supreme Court
In another controversy, a member of the Supreme Court Collegium (a body which chooses judges), Justice Ms. B.V. Nagarathna, opposed the recommendation to elevate the Patna High Court Chief Justice Vipul Manubhai Pancholi as a Supreme Court judge.
“It is not clear what has swayed the Supreme Court Collegium in recommending Justice Pancholi to the Supreme Court, since Justice Pancholi is not merely the third judge from Gujarat to be elevated to the Supreme Court, (disproportionate to the size of the Gujarat High Court and leaving various other High Courts unrepresented) but he is also 57 th. in the all India seniority list of High Court judges,” Ms. Nagarathna pointed out.
In her opinion, there were several meritorious and more senior judges who had been bypassed while recommending Pancholi. She further stated that Justice Pancholi’s becoming the Chief Justice of India in 2031 would not be in the institution’s interest.
Politicization of Judiciary
In their paper “The Impact of Political Influence and Power on the Indian Judiciary” Aayush Kumar and Anirudh Singh dwell on the growing influence and power of political entities on the Indian judiciary.
The principles for ensuring the independence of the judiciary emphasize the significance of impartiality in rendering judgments, wherein decisions are made only on the basis of factual evidence and legal principles, without any undue limitations or inappropriate influences.
But the authors found a complex connection between political forces and judicial rulings. The judiciary is influenced by external pressures. The legislative and executive branches of government utilize statutory provisions to reverse judicial rulings. The authors emphasize the need to protect the autonomy of the judiciary if India is to remain a democracy.
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