Will the Hindutva Government Let Supreme Court Function as an Independent Institution?

By M Ghazali Khan

Following an unprecedented rebellion by four most senior judges of the Supreme Court of India against the Chief Justice, things are being described, business as usual and the rebellious judges have returned to their work.

According to the latest information Chief Justice Dipak Mishra had an half an hour long meeting with the rebellious judges.

‘As you can see, the matter has been laid to rest and all court rooms in the Supreme Court are functioning normally,’ Chairman of Bar Council of India (BCI), Manan Kumar Mishra, has assured.

This should be borne in mind that Mr Kumar is not only a BJP member but also a known Modi admirer who had earlier twitted that Modi was the reincarnation of Mahatma Gandhi’s soul.

On 12 January 2018, the four judges had organised a press conference whereat making several allegations against the Chief Justice and going as far as saying that the manner in which he was running the Supreme Court posed a threat to the country’s democracy. They emphasised that they were anguished to have to take this course.

Justice Chelameswar, who led the four-member team said, ‘We don’t want wise men saying 20 years from now that Justices Chelameswar, [Ranjan] Gogoi, [Madan B] Lokur and Kurian Joseph sold their souls and didn’t do the right thing by our constitution.’

In a letter addressed to Chief Justice Misra, they accused him of assigning important cases selectively to benches ‘with no rationale’, implying thus that he had sought to influence the outcome.

They also expressed unhappiness with ‘certain judicial orders’ passed by the court, which they said ‘adversely affected the overall functioning of the court’.

Citing a number of reasons of their grievances against Justice Misra, they made special reference to their requests to him for independent investigation into the mysterious death of a senior judge B H Loya, who was overseeing a case against ruling BJP’s President and Prime Minister Narendra Modi’s right-hand man Amit Shah.

During the anti-Muslim riots in Gujarat in 2002 under Narendra Modi as the Chief Minister, Amit Shah was the Home Minister of Gujarat. A leaked report by the British High Commission in India said that the carnage in Gujarat ‘had all the hallmarks of ethnic cleansing.’

Amit Shah was arrested in 2010 for the extra-judicial killings of a petti criminal Sohrabuddin Sheikh and his wife Kauser Bi. Later he was released on bail but refused to appear before CBI (Central Bureau of Investigation) court hearing the case. The Judge, J T Utpat, who was hearing the case, was transferred and got replaced by Judge B H Loya.

Judge Loya then sent Amit Shah several orders to appear before the court but showing utter contempt he did not comply with even one of them. Lastly Judge Loya ordered Amit Shah to appear before the court on 31 October 2014. Despite being present in Mumbai Amit Shah defied court orders and did not appear. Judge Loya then issued a final deadline and asked Amit Shah to appear on 15 December 2014. However in extremely mysterious circumstances, the judge died on December 1, 2014. His family members and several of senior judges who have raised doubts and questions about the official narrative of Loya’s death that he died of heart attack, have been demanding independent probe into the case.

The late Judge Loya’s family told India’s leading investigative magazine, The Caravan  that the former Chief Justice of India, Mohit Shah, had offered a bribe of Rs 100 Crore (1 crore = 10 million) to Loya to rule in favour of Amit Shah.

The judge, M. B. Gosavi, who replaced Loya cleared Amit Shah of all the charges. Former Chief Justice P Sathasivam refused to accept an appeal against this decision and reopen the case. Soon after his retirement he was rewarded by being appointed as the Governor of Kerala. Justifying his acceptance of the Governorship h said, ‘If I say no to this job (then), I have to do farming in my village. As a former Chief Justice of India I can have good relations with the state and the Centre and it will benefit the people of Kerala’.

There was a time when the Indian Supreme Court had as strong and as highly principled judges as the late Justice Hidayatullah.

After the sudden death of  Zakir Hussain on 3 May 1969 the then Vice President V.V. Giri was installed as the acting President. Since he was going to contest the by-election for presidency he was in a dilemma whether to resign from the post of acting presidency or to quit as Vice President and then contest the election. So he contacted the Chief Justice of India Mr Hidayatullah. In his biography ‘My Own Boswell’ justice Hidayatullah writes that V.V. Giri contacted him and referring to his friendship with Mr Hidayatullah’s father he made an informal remark and said that after resigning as acting President to be able to participate in the election for Presidency, he would make Hidayatullah as Acting President. But late Hidayatullah maintained a dignified posture and replied, ‘You do what you want to do, the law will find its course itself.’

In this capacity V.V. Giri’s second question was who should he address his resignation to. To this Justice Hidayatullah replied that to give advice did not come within the ambit of his duties as Chief Justice of India and he should contact Attorney General instead.

Relations between Supreme Court and the Central Government had started worsening as soon as the BJP Government came to power in 2014 when it refused to go by the recommendations of the collegiums of the Supreme Court in appointing former Solicitor General of India Gopal Subramaniam as Supreme Court Judge.

Relations between Supreme Court and the Central Government had started worsening as soon as the BJP Government came to power in 2014 when it refused to go by the recommendations of the collegiums of the Supreme Court in appointing former Solicitor General of India Gopal Subramaniam as Supreme Court Judge. Government’s grudge and displeasure against Subramaniam were the reports he, as Supreme Court’s amicus curie, had prepared against Amit Shah. Media reports suggested that this very collegium was forced to recommend the name of Uday Lalit, who had acted as Amit Shah’s defence in the fake encounter of Sohrabuddin Sheikh and Tulsiram Prajapati that was readily approved by the government.

Attempts to manipulate probes by investigative agencies and influence the outcome of court cases by Indian governments is not new. However, as far as the Supreme Court is concerned, its judges have stood bravely before government pressures and have maintained exemplary transparency and independence by refusing to succumb to any political pressure whatsoever.

Marginalised and religious communities, particularly Muslims, who have to face worst discrimination almost in all departments, have until now expressed great confidence in the independence of the Supreme Court.

Marginalised and religious communities, particularly Muslims, who have to face worst discrimination almost in all departments, have until now expressed great confidence in the independence of the Supreme Court.

Even on the very day when, on 16 May 2014, the results of general elections declared Narendra Modi led BJP as the biggest winner, 11 Muslims from Gujarat, who had been awarded death sentences for Akshardham attack case and upheld by the Gujarat High Court, were honourably exonerated by the Supreme Court.

To cite yet another fresh example of impartiality and transparency of India’s judiciary even in an atmosphere of today’s anti-Muslim fervour encouraged by the Hindutva Government, this month a tribunal under the Prevention of Money Laundering Act restrained the Enforcement Directorate from taking possession of immovable assets that it has attached in connection with a money laundering case against televangelist Dr Zakir Naik. Criticising the agility and implying the partiality of the Directorate, the judge said, ‘I can give you the names of 10 ‘babas’ [Hindu priests] who have assets in excess of Rs 10,000 Crore each and who have criminal cases against them…Have you taken action against even one of them?…’

Only time will tell whether the brave judges taking a principled stand will be supported by fellow judges and lawyers in protecting the independence, sanctity and reputation of this hitherto highly respectable institution of India. The fact, however, is that if the filth of sectarian hatred is allowed to defile the sanctity of this great institution the worst victims of it will be religious minorities, specially the Muslims, and marginalised communities.

However, with the poison of Hindu supremacy spread by BJP led Government and with its members and sympathisers being elevated to key posts, the future of India’s judiciary as an independent body does not look very bright. Government machinery is already working behind the scene to silence the family of late Judge Loya. At least they have succeeded in making his son Anju Loya hold a press conference in Mumbai and say the he had no doubt that his father died of heart attack. Although earlier in a handwritten letter to his family members and reproduced by The Caravan, describing Justice Mohit Shah’s visit in February 2015 at the late judge’s house, he had said, ‘Today the Chief Justice of Maharashtra, Mr Mhhit Shah, came to meet us, after 2 ½ months of Dad’s death. I could completely see the guilt on his face. I fear these politicians can harm any person from my family and I am also not powerful enough to face fight with them.’

Only time will tell whether the brave judges taking a principled stand will be supported by fellow judges and lawyers in protecting the independence, sanctity and reputation of this hitherto highly respectable institution of India. The fact, however, is that if the filth of sectarian hatred is allowed to defile the sanctity of this great institution the worst victims of it will be religious minorities, specially the Muslims, and marginalised communities.

Urdu version of this article appeared in several Urdu newspapers and news portals.

2 Replies to “Will the Hindutva Government Let Supreme Court Function as an Independent Institution?”

  1. Mohammad Hassan

    Even before the 4-noble judges spoke up, the environment in India had started eroding right in front of the IT-savvy digital India braggers, visitors to and from Google, Facebook, and Apple. None of these even questioned how come the chief of the Muslim genocide, aka, the then CM of Gujarat was left unscathed and selected few of the administration were penalized
    as a token. Modi was not found guilty”personally” for those riots. Not only this “unbelievable” nonsense, he didn’t even have the common sense to resign for the sake of moral responsibility. Arrogantly and belligerently he continued as CM. To the utter despise and shame of NRIs living outside India, the people of Gujarat continued electing Modi as their CM. And finally, in the 2014 general election, Modi had the audacity to self-nominate as PM on behalf of BJP. By this action, even before being elected he changed the Indian parliamentary system into an American presidential system. None raised, including the interpreter of the Constitution, viz., the Supreme Court of India. And 31/69 ratio the majority “subtly”gave the green light for Hindutva. Now we are hearing some rational “noises” here and there, the one from the esteemed 4 judges was one of them. Does it sound fair or just or nationalistic for India to you, the reader, not to me. Elsewhere (The Wire online) I have made the following comment. Will that make any difference? What I saw during the past week, I am sure the”majority” behind the “curtain” will re-vote for RSS-type stooges like PM Modi, CMUP, and the like in 2019, 2022, 2024. I find a change of heart among the majority of India, be they youthful or octogenarians. It is sad but true. Unless indians become sincere in their intention, honest in their action, ruthlessly honest and fair in execution. Worst is yet to come. Beware, my former
    Co-countrymen. My Wire/Disqus comment for discussion was:
    “I have a ?. Were these SC judges serving in 2002? At that time, the country of my birth declared PMNDM “so-called” not even “co-conspirator” a la GWB, president of my present residence who coined this phrase, in 2002, to win the midterm US Congress election that changed the democratic world forever and gave birth to what PMNDM is suffering from. I call it anti-Muslim agenda NOW and forever a la RSS. For Harvard guys, this is also called “Islamophobia” or “clash of civilizations”. In that environment, the same SC declared Modi “not guilty”. Later, under the most liberal Secy of State, US denies him the visa to enter the country. Hypocritically, however, allows Modi’s financiers, supporters to hold a video (5K NRIs attending) conference for Modi @ MSG that was shamelessly attended by so-called NRIs, traveling the world on the US passport, including the countries in ME, Shia and Sunni alike, e.g., Muscat, Bahrain, KSA, UAE, among others. (Forthrightly, the selection has specific strategic reason behind it). I don’t consider my readers “oxymorons” as PMO/RSS/BJP condones from the days of Haram(Ram)zada. This has changed the mindset in such a way that “majority has to win”, ignoring the fact that Muslims ruled over India for over 800 years in the 20/80 ratios and gave India Taj as 1/7 wonder, its slave ruler gave GT road from Howrah to Peshawar. What did British India do in 200 years? Stole Kohinoor and other riches from here right under the eyes of the present majority and took it back home. RSS sided with them. So did Maharajas, Nawabs, Nizams, all feudal lords and following the English menace “divide and rule”. Muslim kings/traders came to India to stay for good and burned their boats behind them and never sent any oil drop to ME, Central Asian nations, from where Babur came and is buried in Afghanistan. Historically, all the recently maligned “mogul kings”, except Humayun, were born in India. They must be called Indians. Do we call Aryans (white pundits of J&K Germans?). To conclude, with due respect (Sadar Pranam) to you readers, India/Bharat/Hindustan is better off by being what it is, not what it wants others to call it. STOP being the Superpower, aspiring for a veto in SC (Security Council, UN, not Supreme Court of India). I have said enough to arouse your erudite thinking @ the moment. In replying, try to task yourself to be TASKED, where T=think, A=analyze, S=synthesize, K=know, EM=educate, and last but least D=develop anything you want, including the reply to my 2 cents worth of response. More if I hear substance. I am 80+. So, be kind to me, if you are a believer in ahimsa, love 2-legged animals. They gave birth to all humans, including you and me; plus, PMNDM, and UPCM whom I never saw (on TV) feeding his biological Mata. Yes, I did hear him touting emergency vans for “Cow mantas” while w/o oxygen innocent human children were suffocating to death in a city that he has represented over 1/3 of a century. Excuse me if my octogenarian mind/memory is failing me. I am consoled that later is better than never among 4 justices.”

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  2. Ahmad Rashid Shervani

    Both, Mr M Ghazali Khan and Mr Mohammad Hassan, have placed incontrovertable facts before us and the opinions, feelings expressed by them are most valid, honest and sincere. However, the mischief (which both
    have rightly condemned) is NOTHING new. It had been going on ever since I can remember. Since “Day One”, we can say. There have been, roughly, about 500 communal riots every year since Independence. Almost invariably, the culprits were saved. In many cases the quilty were rewarded. And all this went on “right under the long noses of our “Super-Secularist” leaders. The current oppressors are declared communalists/fanatics/ fascists. We (at-least I) could not and did not even expect them to be any better. If anything, I expected them to be WORSE than they have yet revealed themselves as.
    Unfortunately, even the best among us (such as Ghazali Saheb and Hassan Saheb) are NOT paying enough attention to our own (I mean our millat’s) faults/blunders which are mainly responsible for landing us in the mess. Then how will we (I mean, our millat) try to get out of this mess. Just condemning “them” may give us some solace, may perhaps even be a kaar-e-thawaab, but it is NOT likely to benefit us (I mean, our millat).

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