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Reply to Ramchandra Guha’s open letter written to Supmreme Court judges

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Founder Director Lokbandhu Rajnarayan Law College Varanasi 221302 web: Since 2004

Respected historian,

I am writing this letter in response to a an article of a prominent personality- Ramchandra Guha, published in the The Indian Express, but neither in anguish nor in respite. I am a simple citizen with a little bit of knowledge of law since by grace of education system of India I did my Ph.D in law. Let me get straight to the point that even in the smallest part of India still many of the dispute are settled on intimidation of the statement ‘tumko mai court me dekh lunga’. This is what the credibility of law and court is. The delay in justice is surely not appeased but that does not mean that office of justice has malfunctioned. The instant case of aero space scientist Nambi Narayan is leading example. I will not go in the details as it will lead to another discussion neither I will raise the concern of justice delayed is justice denied. I will always say and continue to insist the SC has been the guardian of democracy and will always remain to be. Every institution or authority however the supreme they may be have always the scope of penetration through the loophole. Who penetrates first and who is stronger to create a shield. Even Supreme Court may be supreme but certainly is not infallible.

As you also corroborate, through your book India After Gandhi that these degradation of democratic values are not a part of one political party or one leader but these distortions were set up in motion during the Congress regime. The same was followed by short stint of Janta regime. The  greatest concern of any new government remain on the treatment of the former government. Definitely this should not be guiding force of administration and development. Changing the colour of the city, public buildings and public belongings.

The Janta Party of 1977 was determined to make Congress pay for imposing Emergency. As per my knowledge, there were at least 8 commission of enquiry set to probe the Congress party activities and the most prominent was Shah Commission led by Justice J.C. Shah. The committee was also set to probe involvement of Sanjay Gandhi’s  Maruti Udyog. All these commission were part of judiciary. The case of arrest of Mrs Gandhi during Janta regime by Charan Singh, the then PM and shifting her to new state rather confining her to Delhi where chargesheet was placed in front of magistrate. It took few second to throw the flimsy and worthless chargesheet by the judicial magistrate.

The Kesavananda Bharati case was the emergence of a serious conflict between the judiciary and the government, then headed by Mrs Indira Gandhi. In 1967, the Supreme Court took an extreme view, in the Golak Nath case, that Parliament could not amend or alter any fundamental right. Two years later, in 1969, Indira Gandhi nationalised 14 major banks and the paltry compensation was made payable in bonds that matured after 10 years! This was struck down by the Supreme Court, although it upheld the right of Parliament to nationalised banks and other industries. A year later, in 1970, Congress government headed by Indira Gandhi abolished the Privy Purses.

This was a constitutional betrayal of the solemn assurance given by Sardar Patel to all the erstwhile rulers. This was also struck down by the Supreme Court. Experiencing  an acutely oppressive and burdensome source of mental  distress due to these three successive adverse rulings, which had all been argued by N.A. Palkhivala, Indira Gandhi was determined to cut the Supreme Court and the High Courts to size and she introduced a series of constitutional amendments that nullified the Golak Nath, Bank Nationalisation and Privy Purses judgments. In a nutshell, these amendments gave Parliament uncontrolled power to alter or even abolish any fundamental right.

These drastic amendments were challenged by Kesavananda Bharati, the head of a math in Kerala, and several coal, sugar and running companies. On the other side, was not only the Union of India but almost all the States which had also intervened. This case had serious political overtones with several heated exchanges between N.A. Palkhivala for the petitioners and H.M. Seervai and Niren De, who appeared for the State of Kerala and the Union of India respectively.

The infamous Emergency was declared in 1975 and, by then, eight new judges had been appointed to the Supreme Court. A shocking attempt was made by Chief Justice Ray to review the Kesavananda Bharati decision by constituting another Bench of 13 judges. In what is regarded as the finest advocacy that was heard in the Supreme Court, Palkhivala made an impassioned plea for not disturbing the earlier view. In a major embarrassment to Ray, it was revealed that no one had filed a review petition. How was this Bench then constituted? The other judges strongly opposed this impropriety and the 13-judge Bench was dissolved after two days of arguments. The tragic review was over but it did irreversible damage to the reputation of Chief Justice A.N. Ray.

The great dissenting judge justice H.R. Khanna is highly praised for his minority judgements in the highly publicized Habeas Corpus case during the  Emergency, in which the remaining four judges of the five-member bench, Chief Justice A. N. Ray, Justice M. H. Beg, Justice Y. V. Chandrachud and Justice P. N. Bhagwati, agreed with the governmental view and submission that even the fundamental rights enshrined in the Constitution of India like the right to life and liberty stood abrogated during the period of national emergency. Khanna’s judgement was the lone dissenting vote, and his opinion, claiming that the Article 21 of the Constitution could not possibly be the sole repository of the fundamental rights to life and liberty as these predate. The Constitution itself and the existence of these rights cannot be subjugated to any executive decree even during the period of national emergency for these are inalienable to one’s life and dignified existence, is praised for its ‘fearlessness’ and ‘eloquence’.

In January 1977, nine months after delivering his highly respected dissent in the ADM Jabalpur v. Shiv Kant Shukla (Habeas Corpus) case, Khanna was superseded to the office of the Chief Justice of India by Justice M. H. Beg, contrary to the convention of appointing the senior-most puisne judge as the next Chief Justice of India on the superannuation of the incumbent, at the behest of the then Prime Minister of India Indira Gandhi, despite him being the senior-most puisne judge in the Supreme Court at the time of superannuation of A. N. Ray, the incumbent Chief Justice of India. As a result of this, he promptly resigned from the court which was effected in March.

There is no express legal bar on a former judge accepting eminent post. Sometimes it becomes hard to reduce the issue to technicalities or should be judged on the basis of  perceptions of credibility of a judge by public at large. These appointment are not without precedents. Earlier Justice Fatima Biwi was appointed the Governor of Tamil Nadu after her retirement from the Supreme Court. Former CJI K Subba Rao delivered the landmark Golak Nath judgment, which held that Fundamental Rights cannot be amended. The judgment went against the then Indira Gandhi government. Justice Subba Rao became the joint opposition candidate in the presidential election of 1967 and lost to Zakir Hussain. Justice V.R. Krishna Iyer, too, contested the presidential election after retirement and lost. There may be some difference between these precedents but they are secondary one.  Justice Fatima Biwi was just a judge of the Supreme Court, and even her appointment was criticised for lack of propriety. 

The 21st CJI, Rangnath Mishra, served as an MP in the Upper House from 1998 to 2004.Justice Mishra was a Congress MP he may not be a member of eminence appointed by the President. Justice Mishra was appointed to the Supreme Court in 1983, and became the CJI in 1990. He joined the Congress about seven years after his retirement in 1991. Should the arms distance between judiciary and executive not be followed even after retirement. Baharul Islam was elected to the Rajya Sabha on a Congress ticket in 1962 and 1968. However, he resigned from Parliament in 1972 to become a judge of the Guwahati High Court. Islam retired in 1980, but once Indira Gandhi came back to power, he was sent to the Supreme Court as a judge. He went on to absolve the chief minister of Bihar, Jagannath Mishra, in the urban cooperative bank scandal. He resigned thereafter, only to be made a Rajya Sabha MP again.

In the year 2015, the Supreme Court in its landmark verdict, fortified the right to freedom of speech and liberty by striking down as ‘unconstitutional’ Section 66A of Information Technology Act, which police had used indiscriminately to arrest persons for posting criticism of government and political leaders. The restriction on free speech by Section 66A, was brought into force by the UPA government in 2009 by amending the I-T Act. Whether this verdict can also be termed as the language of executive spoken by the court.  

In November 2013, the Congress-led UPA government submitted the fact of urban naxalism in an affidavit through Daljit Singh Chaudhary, Director, Government of India Ministry of Home Affairs and had informed the S.C. that one of the strategies used by the Maoists was to mobilise certain targeted sections of the population, especially the urban population, through its ‘mass organisations’ which are otherwise known as ‘front organisations’. It had also stated that they were more dangerous than the guerrilla army. In simple words, it was claimed that  academecians and activist in urban centres had come to control mass organization linked to naxals.

The affidavit was filed on the heels of a plea filed by former Samajwadi Party legislator Kishor Samrite, who sought the effective implementation of the integrated action plan chalked out in 2009 to tackle menace of the Naxals.  The plea, filed in 2013, was disposed off four years later by a bench of then-Chief Justice of India J.S. Khehar and Justice D.Y. Chandrachud. According to the record of proceedings available on the Supreme Court website, the matter, which was listed in 2013, was heard just four times before it was disposed off in 2017. Unlikely, the matter of urban naxalism in  Bheema Koregaon case 2018 is termed as intolerance and is jeopardized.

It was the scholars, journalist and writers who debated and cited for government of strong will power in the centre. The blot which democracy faced during the regime of emergency is not hidden from today’s scholar or the person alike you who himself must witnessed the era. On plight of lockdown- can anybody site one example of a planned lockdown imposed in any part of world. Besides politicians who was not affected from the whip of the Covid 19. Everybody had penned on immigrant workers, labourers – what about small entrepreneur, self employed petty traders and has anybody seen the plight of young advocates.

Are these people outside the domain of any sort of empathy? If anybody has to appoint his PR, he has to be such person who can merchandise his character according to his will. This is no crime neither unlawful. The bureaucracy will fail if not done according to simple science of politics. The most important feature of the chess is activity of the pieces which is absolutely important in all phases of the game. The primary constraint on the pieces activity is the structure of the pawn. The pawns are the soul of chess board.

I can show my empathy towards the people of Kashmir since 5th August, 2019 over denial of basic human rights but I totally support the abrogation of Article 370 and 35A. Kashmir has manifold problem today like no access to internet today  but misdeeds of past needs some correction and someone will have to take the burn. Section 69-A of the I-T Act 2000 has empowered authorities to issue directions for blocking for public access of any information through any computer resource if the authorities felt that it was necessary to do so in the interest of “sovereignty and integrity of India, defence and security of India or any state, friendly relation with other countries and disturb public order or incite an offence. Section 69A is a narrowly drawn provision with several safeguards like blocking can only be resorted to where the central government is satisfied that it is necessary to do so. Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in any petition before any court of law.

The very essence of the constitutional fact that executive, legislature or judiciary is independent with each other is just in word and not in deeds. Judiciary is the guardian of constitution, but the legislature which makes law has to be checked. reply of the letter can be through letter only not a novel. The law must change with society. The amendment in the constitution draws the derivative from this statement but has all amendment been with this motive only. There are many instances of executive encroaching judiciary from lower court to superior court, may not be, directly but latently. But this may not be termed failure of SC. The apex court has always been the guardian of the constitution and will always remain so.

Hence as a man of extraordinary prudence and high literary intellect we should be cautious enough to express our thoughts and concern over the issues which can influence indiscreet and uninformed social media worms.


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Founder Director Lokbandhu Rajnarayan Law College Varanasi 221302 web: Since 2004
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