The two common utterances regularly heard in our public discourse are – (i) “The law will take its own course” (by the prosecution); and (ii) “We have faith in the judicial process” (by the prosecuted). But both these assertions need to be questioned, given the experiences of common Indian citizens in their sufferance from laws on the one hand, and confrontation with certain types of judges on the other. They sound fatalistic, implying that the mighty juggernaut of the legal apparatus and the judiciary will have their final say by crushing all that come in their way. Questions are being raised about whether the laws, to begin with, are flawed in themselves, and could thus follow a wrong course, and whether the judges suffer from certain biases that could distort the judicial process.
In such troubling circumstances, it is therefore gratifying to see the new Chief Justice of India, N.V. Ramana touching upon the problem of dealing with prevalent laws, in a speech he delivered at the Supreme Court Bar Association meeting on August 15. Referring to the legislations enacted under the present dispensation, he said that it was “a sorry state of affairs.” He added: “We see legislations with a lot of ambiguities…and a lot of gaps in laws. There is no clarity regarding the laws. We don’t know for what purpose a law has been made…this creates a lot of litigation and inconvenience and loss to the public life.” It is significant that the Chief Justice made these remarks in the backdrop of the enactment of certain laws recently, which were rushed through by the ruling party in Parliament without debates on its floors and scrutiny by select committees. He then described how in the past, debates shaped the contours of law and made them foolproof, as a result of which “…the burden of the courts while interpreting or implementing the laws used to be less, as we had a clear picture as to what was the purpose behind the making of a particular law and what the legislature thought while making the law.” He then made a significant observation: “This is what happens if intellectuals and visionaries like lawyers are not there in the houses of parliament and assemblies.”
Record of Indian Parliament and state legislatures in enacting laws
While sharing the Chief Justice’s nostalgia for the legislatures of the past which were adorned by `intellectuals and visionaries,’ let me however remind him that the past record of our parliament had not always been covered with glory – irrespective of which political party (Congress, BJP, or a coalition of parties) dominated its floors. These `intellectual and visionary legislators’ quite often enacted some of the most draconian laws, which continue to violate the human rights of Indian citizens. To quote a few instances, one of the earliest laws of such a nature was the Armed Forces Special Powers Act (AFSPA) passed by Parliament in 1958, under the premiership of Jawaharlal Nehru. Ostensibly meant to curb secessionist insurgencies in north-east India, it gave unlimited power to the army personnel, authorizing them to shoot to kill and arrest without warrant anyone suspected of insurgent acts. Still in force, it has wreaked havoc on the lives of the people of the north- east. This was followed by the enactment of the Unlawful Activities (Prevention) Act (UAPA) in 1967, which was made further stringent through several amendments between 2004 and 2019. It incorporated some of the repressive provisions of two earlier controversial terror laws – Terrorist and Disruptive Activities Prevention Act (TADA) and Prevention of Terrorism Act (POTA), which were allowed by the government to lapse after some time in the face of mounting criticism by human rights activists both in India and abroad. The UAPA in its present incarnation, has become a catch-all law that enables the state to brand any citizen as a terrorist on the suspicion of his/her association with an unlawful organization, or stay in a place notified as being used for unlawful purposes. Under the law, such citizens can be arrested without warrant and incarcerated almost indefinitely. It is extremely difficult to obtain bail, since magistrates and judges trying these UAPA-related cases, tend to depend only on the police documents which presume the guilt of the accused. The latest victim of this connivance between an acquiescent judiciary and a vindictive prosecution that is sanctioned by the UAPA, is the 84-year Jesuit priest, Stan Swamy who died in Taloja Central Jail in Maharashtra recently. Suffering from multiple ailments, he requested the court to send him back to his residence in his familiar surroundings, where he could spend his last days in peace. An insensitive judge rejected his appeal, thus forcing the octogenarian to die in jail.
There has been a 72 per cent increase in the number of arrests made under the UAPA law between 2015 and 2019, but the conviction rate has been only two per cent (according to the data released by the Indian Home Ministry), which shows the weak grounds on which such cases are built by prosecutors who depend on shoddy police reports. We should note also that the acquittal by the judiciary of those found innocent usually comes after several years of their arrest, through a long dragging judicial process. As a result , hundreds of under trial prisoners spend years behind bars despite being innocent of the crimes which they are accused of. Some of them are political prisoners – victims of belligerent prosecutors who are determined to muffle dissenting opinions that offend the ruling powers.
The other draconian law passed by the Indian parliament was the Public Safety Act of 1978, with the objective of curbing secessionist activities in Kashmir. Since its promulgation, it has been used to suppress democratic rights of political parties and common citizens of Kashmir who dare to protest against the government’s repressive acts. Politicians have been jailed, or kept under house arrest without trial under the Act. Even the UN felt constrained to reprimand the Indian government on this issue. The Office of the UN Human Rights Commission (OUHRC) came out with two reports in 2018 and 2019, expressing concern over the violation of human rights in both “Indian Administered Kashmir and Pakistan administered Kashmir.” In its second report covering the period from May 2018 to April 2019, it particularly referred to the `Indian Administered Kashmir,’ questioning the Indian government’s crowd controlling measures, extra-judicial killings and legal immunity for its security forces.
But the most shameful record of Indian parliamentarians – under successive Congress or coalition-ruled regimes, or the present BJP government – had been their willingness to retain the notorious sedition law, a colonial legacy that continues to be a part of our Indian Penal Code. The regimes in post-Independence India, irrespective of their political hues, had frequently resorted to this law under which they could arrest their political opponents and incarcerate them almost indefinitely. It is heartening therefore to hear Chief Justice Ramana’s decision to `revisit’ this outmoded colonial law.
Laws about civil disputes
Apart from these laws that criminalize political dissent, there are other laws that relate to civil disputes which are framed in such a convoluted fashion of sophistry that the common citizen feels like echoing the outburst of Mr Bumble, the boisterous character in Charles Dickens’s ‘Oliver Twist.’ Exasperated by the twists and turns of such laws, he exclaimed in his rustic lingo: “ …the law is a ass – a idiot..” It is these laws in the Indian statute that probably attracted the attention of Chief Justice Ramana, when he denounced them as filled with a “lot of ambiguities,” which “create a lot of litigation and inconvenience and loss to the public life.” The other side of such litigations is the commercial business that has thrived around them. Unscrupulous lawyers are having a heyday, fleecing litigants. Their role is summed up in the following joke that makes the round in the corridors of the courts: “What does the lawyer wear to the court ? – A lawsuit.” The more a lawsuit on behalf of a client can be prolonged by the lawyer through pleas of adjournments, the more opportunities for him/her to charge the client for every appearance to argue the case. Such pleas for adjournment are usually acceded to by judges – who are either too overworked to have the patience to hear the cases, or ill-equipped to understand the complex intricacies of the laws under which the cases are filed. They therefore choose to postpone the hearing of cases.
A typical example of such judicial procrastination caught up in the cumbersome intricacies of laws, is a 54- year old case of a land dispute in Bihar – which was finally settled by the Supreme Court as late as September 2021. Way back in 1967, a landowner filed a title suit before the Sitamarhi trial court to dislodge a doctor who had been occupying a portion of his land, ostensibly gifted to him by the earlier owners. Through appeals and counter-appeals by the plaintiff and the defendant, the case went up from the trial court to the additional district judge of Sitamarhi, and then to the Patna High Court. Its single judge dismissed the appeal of the legal heirs of the doctor in 1989 – twenty three years after the case was initiated. They then filed an appeal against the High Court judgment to the Supreme Court – which took eleven years to come to a decision. In 2000, the honourable judges of the apex court threw back the ball to the Patna High Court for `de novo consideration owing to intricacies of land law involved in the case.’ Nine years later, the Patna High Court dismissed the appeal of the doctor’s heirs. The latter then again filed an appeal in 2009 to the Supreme Court – which sat on it for the last 12 years. In September 2021, the apex court finally woke up, when a bench of Justices A.M. Khanwilkar and Sanjiv Khanna brought the more than a half a century litigation to a close, by upholding the ownership of the doctor’s descendants over the land. In an ironical twist to the tale, in the meantime, both the main plaintiff and the defendant had passed away, spending their last days waiting for the verdict. (Re: Times of India, September 2021).
There are also cases of state governments taking recourse to certain provisions of prevalent laws to stifle dissent – often in defiance of Supreme Court decisions striking down those provisions. A typical instance is the fate of Ambikesh Mahapatra, a professor of the prestigious Jadavpur University of Kolkata. About ten years ago, he forwarded and shared a cartoon through e-mail, that lampooned the West Bengal Chief Minister Mamata Banerjee. A vindictive Mamata, intolerant of anyone laughing at her, got him arrested – under Section 509 of the IPC, that pertains to `word, gesture or act meant to insult women’. Although out of prison, Ambikesh Mahapatra is still forced to fight the case, since the Mamata-led West Bengal government persists on continuing the case against him, which he describes as “attempts to intimidate and harass him.” He is awaiting the verdict of the Chief Judicial Magistrate of Alipore, which is scheduled to be delivered on November 17, 2021. Meanwhile, in August 2012 the West Bengal Human Rights Commission recommended disciplinary proceedings against the police officers who harassed him, and directed the West Bengal government to give him monetary compensation for the suffering that he had to go through. In 2015, the Calcutta High Court upheld this direction. But till now, Mahapatra has not received any compensation. (Re: The Hindu, September 16, 2021).
The Wheels of Justice
To come to the role of the judiciary, there is a complex relationship between its powers to deliver justice and its obligation to adhere to the prevailing laws under which it can deliver it. There are two contradictory concepts that plague our judiciary. We accept with patience the saying that the `wheels of justice grind slowly,’ and yet we recognize that `justice delayed is justice denied.’ In the Indian judicial system, one of the wheels of justice remains tied to the bullock cart of conservative religious beliefs, and the other wheel continues to be run by the motor of British colonial laws. Caught between these contradictory pulls, Indian judges – whether in state high courts or at the apex level – come out with verdicts that sound bizarre ! It is time that the judiciary gets attached to a railway engine, if not an aircraft.
It is welcome therefore that the new Chief Justice of India N. V. Ramana, along with his stress on reforming laws, is also emphasizing the need for cleaning the Aegean stables of his own backyard – the judiciary. At a meeting in Bengaluru recently, he admitted: “ Very often our justice delivery poses multiple barriers for the common people. The working and the style of courts do not sit well with the complexities of India.” He then advocated the need to “adapt to the practical realities of our society and localize our justice systems.” Fine sentiments ! But then, will he be able to reform the judiciary ? He will have to work under a heavy baggage – a rather embarrassing legacy left on his shoulders by his predecessors, as well as by many of his present colleagues who want to continue with the status quo.
Let us look back at the baggage – a record of some of the most atrocious judgments passed by the judges ranging from those at the lower courts to those occupying Supreme Court benches during the last few years. It is an individual judge, or a group of judges on the bench, who often decide the fate of a case, depending on her/their interpretation of the laws, or personal biases, or even willing submission to political pressures. To take a recent example of judicial abdication of responsibility , let me quote the rather bizarre statement made by the then Chief Justice of India, Sharad A. Bobde on March 2, 2020 in response to a petition by senior advocate Colin Gonsalves. The latter, after the horrendous riots in north-east Delhi, requested the apex court to urgently intervene and pass directions to arrest those delivering hate speeches and to prevent the spread of violence. Expressing his inability, the Chief Justice said: “We cannot stop things from happening. We cannot prevent anything…We feel a kind of pressure on us…We cannot handle that..” This utterance should go down in the history of Indian judiciary as the most shameful statement made by a Chief Justice , after the infamous 1975 judgment of the apex court that sanctioned the suppression of fundamental rights. Chief Justice Sharad Bobde had the power to intervene suo motu in
such circumstances, where he could have passed orders to arrest the BJP leaders who by their speeches were provoking their followers, that were to lead to the riots that followed. He could have stopped “things from happening” and “prevent anything,” by simply issuing such orders.
But it is his utterance at the end of his statement that sounds intriguing. He talks about a “a kind of pressure on us…We cannot handle that..” He should have clarified and specified the sources from which these pressures were operating. Was he referring to the civil society groups which were filing PIL cases in expectation of justice for the disadvantaged people, and human rights groups which approached the apex court expecting justice for victims of police brutalities ? Or, was he facing the “kind of pressure” that is usually inflicted by today’s ruling politicians on every institution , including the judiciary ?
To add to that ambivalent statement of judicial helplessness, Sharad A. Bobde during a hearing two days later on March 4, came out with another intriguing statement. After a long exchange with the advocate Colin Gonzalves, who while pleading on behalf of the victims of the riots in north-east Delhi demanded the arrest of the BJP leaders who instigated the riots, the Chief Justice asked the High Court to expedite the case against them. While this is indeed a welcome move, at the end of the arguments, he tended to shift his shoulders in favour of the ruling government’s top law officer, Solicitor General Tushar Mehta. Opposing the arrest of the BJP leaders, Mehta had argued that it was not the opportune time for that as it might lead to renewal of violence. Agreeing with him, the honourable Chief Justice came out with this amazingly injudicious utterance: “Sometimes, there may be a flare-up when leaders are arrested. You know what happened in the Bombay riots … Shakha Pramukhs were arrested, it flared up. (sic).” So, are we to suppose that the police should not arrest leaders who instigate communal riots, since there can be a `flare up’ ? Do we accept the proposition that the police are not capable of suppressing such a ` flare up’ – which they are expected and empowered to do ? These are major questions that confront us, Indian citizens who feel confused, if not betrayed by the frequent ambiguous utterances made by these judges.
Added to our sense of betrayal by the judicial system, are the obsequies paid by a senior Supreme Court judge to Prime Minister Modi, especially at a time when under the Modi regime, parts of the national capital were up in flames of communal riots. Justice Arun Mishra, third in seniority in the apex court, while addressing a global conference of jurists in Delhi on February 22, 2020, described Modi as “an internationally acclaimed visionary” and a “versatile genius, who thinks globally and acts locally.” Henceforth, can any litigant against the government trust him to deliver an impartial judgment ? The least that this judge can do to preserve his self-respect is to recuse himself in future from hearing cases that involve disputes between citizens and the government.
Apart from denying justice to citizens, some judges also insult them by making insensitive remarks. As an illustration, let me draw attention to the comment made by a Supreme Court bench on February 10, 2020 on the Shaheen Bagh protestors in Delhi. Headed by the same Chief Justice Sharad Bobde, it took up the issue of an infant dying after returning home from Shaheen Bagh where his parents had taken him along to join the anti-CAA protests. The bench raised the question: “Can a four month old child be taking part in such protests ?” It was a question posed in defence of a petition made by a 12-year bravery award winner Zen Gunratan Sadavarte, who sought to prevent infants and children from being taken to protest demonstrations, citing the death of the infant. We agree with her concerns, and urge parents to protect them when taking them out in public demonstrations.
But there is another side to the story – from which the Supreme Court judges chose to look away. Ensconced inside their comfortable chambers and homes, they were far removed from the slums of the poor women who dared to come out in the streets to assert their rights and protest against the discriminatory and oppressive laws like CAA, NRC and NPR. Coming back to the particular case of the death of the baby, a woman lawyer who came to the defence of the couple who had taken their baby to the protest site regularly despite the extreme cold weather which eventually led to their child’s death, argued: “The child’s mother lived in a place which cannot be called home. It is an enclosure made of mere plastic sheets.” (Re: The Times of India, February 11, 2020). Obviously, the mother could not leave behind her child there, and chose instead to carry the four month old child, while daring to join demonstrations of protest against laws which discriminated against her. Challenging her right to join the protest with her child, Solicitor general Tushar Mehta asked: “Can that be a ground to take a four-month-child to the protest site ?” But then, let’s ask Mehta: If the state fails to provide facilities for mothers and their children in the slums, how can the mothers provide for themselves, even when they want to assert their rights by coming out in public protests in Shaheen Bagh in Delhi, Park Circus in Kolkata and other parts of India ? Instead of blaming the parents, while sharing their personal tragedy, the judges should have delved into the fundamental causes that led these poor parents into the streets, and should have hauled up the government for failing to provide them with humane housing facilities. But then what can we expect from well-paid judges who come from a privileged background and are totally ignorant of, and indifferent to, the plight of urban slum-dwellers, and the agricultural poor ? Very few from amongst them have cared to empathize with them, while passing judgments.
In a similar case of judicial insensitivity as recent as October 4, 2012, a Supreme Court bench of Justices of Sanjay Kishan Kaul and M.M. Sundresh issued notice to the farmers groups which had been sitting on dharna for almost a year in protest against three farm laws which they consider to be threatening their livelihood. Just because they had also filed a petition challenging those laws in the Supreme Court, the judges said that since the matter was sub judice, the farmers had no right to continue their demonstration and should wait for the judicial verdict. But knowing the procrastination of the judicial process, how long will the farmers wait for the verdict ? The apex court has been sitting for months together on a report on the controversial farm laws submitted to it by an expert committee, which was appointed by its own judges. It keeps on adjourning hearing on the petitions filed by farmers organizations against those laws. Does the court want the farmers to wait for decades (or more – the time usually taken by Indian judges to come to decisions) till their next generation hears about their final judgment ? In the meantime, are they expected to stop their nation-wide agitation to bring pressure on the government ? In certain situations, popular pressures at the street level can be more effective than long-drawn out legal processes presided over by judges who are stuck in their straitjackets of legalese.
Judges whether in state high courts or in the Supreme Court, have been known to prevaricate in taking up suo motu, cases that involve the human rights of citizens and challenge the ruling powers. Abhishek Singhvi, a senior advocate and also a Congress party spokesperson, during an interview with Karan Thapar on The Wire website on March 5, 2020 said that judges have a tendency “to decide hard questioning by adjourning them.” He added that at the trial court level, “the quality of trial judges is generally poor”, which means that at the first point of contact with the judicial system, Indian citizens cannot be certain of getting justice.
The verdicts and utterances of our judges quoted above, raise a disturbing question that reflects upon the judicial capability of the judges who are presently manning our courts from the district to the state high court levels up to the Supreme Court. Are our honourable judges committed to the universal ethos of justice, or subject to the pressures of the ruling government, or their own upper class biases ?
Are Indian judges afflicted with casteist prejudices and superstitious beliefs?
Apart from the judiciary’s tendency to surrender to the dictates of the ruling party, and adhere to repressive laws as evident from the cases cited above, there is another alarming trend that erodes public faith in the courts’ ability to deliver justice. During the last several decades, there have been numerous cases of judges – ranging from the district and state levels to the apex court – who have delivered judgments or made utterances that betrayed their religious and casteist prejudices, and superstitious beliefs. Let me give a few examples. On December 25, 1968, at Kilvenmani in Tamilnadu, Dalit villagers were massacred by upper-caste landlord led gangs . Seven years later, they were acquitted by the Madras High Court, with the specious argument that respectable upper-caste people could not indulge in such violent acts !
Since then nothing has changed in the mindset of our judges, who continue to deliver verdicts and make utterances that stink of their bias in favour of upper caste Hindus and belief in superstitions. The most controversial judgment of the apex court in recent years was the one delivered by its then chief justice J.S. Verma, who in 1995, upheld the term ‘Hindutva’, by defining it as a “way of life or a state of mind and is not to be equated with or understood as religious Hindu fundamentalism.” This paved the way for the Sangh Parivar to legitimize the term `Hindutva’ and use it to serve its majoritarian communal agenda in its electoral campaign. When some two decades later in 2016, civil rights activist Teesta Setalvad appealed to a Constitution Bench of the Supreme Court requesting it to review the `Hindutva’ judgment, as it had become a mark of Indian nationalism and citizenship that excluded the religious minorities, the Bench declined to go into the 1995 `Hindutva’ verdict – thus again betraying its majoritarian religious bias.
To what ridiculous extent such religious bias and superstitious beliefs can descend is evident from the comments made by Justice Mahesh Chandra Sharma of the Rajasthan High Court on the eve of his retirement in Jaipur on May 31, 2017. He was reported to have said that peacocks did not mate, but sired their offspring through tears ! Then he added another gem – declaring that the cow was the only animal that inhaled and exhaled oxygen, and so its urine had “miraculous properties of destroying germs and preventing ageing.” Can Indian citizens trust such judges for rational judgments ?
Need for international audit of India’s judicial system
Given the state of the quality of Indian judges, justice is too important a matter to be left to them. It is no longer an `internal matter’ – the much used term that our ministers and bureaucrats use to prevent UN and other international human rights bodies from trying to investigate into India’s atrocious record of human rights violation.
Since the Indian judicial system is fast descending to the nadir of juridical submission to pressures from ruling politicians, and corrupted by religious and casteist prejudices , it is immediately necessary to salvage the system from further degeneration. A few individual judges, both at the apex and state high courts, have courageously resisted the overwhelming wave of politicization and corruption of the system, by passing judgments that protect the rights of our citizens. But theirs are solitary voices in the judicial wilderness that India is living through. They alone cannot stem the rot. They need solidarity and support from the global community of jurists, who along with civil society groups and lawyers inside India, can exert pressure on the Indian judiciary to restore the internationally recognized norms of delivering justice, to which it is committed.
How to proceed in this direction ? To start with, human rights lawyers and civil society groups in India can approach the International Court of Justice, the judicial organ of the UN based in Hague. Its main role is to “settle, in accordance with international law, legal disputes submitted to it by States …” New Delhi may just well claim that the Court has no right to intervene since India has not submitted any such `legal dispute.’ But the Hague Court, under its same brief is authorized to “give advisory opinions on legal questions referred to it by authorized UN organs and specialized agencies.”
One such legal question that has been raised by a UN authorized organ – the Law Society of England and Wales, representing solicitors from that country – is the justifiability of the detention of the President of the Jammu and Kashmir Bar Association, Mian Abdul Quayoom. In a letter to Prime Minister Narendra Modi dated March 5, 2020, the Society has expressed its “grave concern” over his detention, describing it as “judicial harassment.” Taking cue from this, Indian civil society activists and human rights lawyers can approach similar `authorized UN organs and specialized agencies’ to forward their concerns to the International Court of Justice. Its intervention, even through `advisory opinions,’ may hopefully pressurize the Indian judiciary to reverse its present course of self-destruction, and move instead towards self-restoration, by purging itself of (i) corrupt practices like bribe-taking; (ii) judicial malfeasance like succumbing to pressures from ruling political parties; (iii) insensitivity to issues like human rights and civil liberties; and (iv) upper class and upper caste-based prejudices, and superstitious beliefs.
I earnestly hope our new Chief Justice of India meets these expectations of the common Indian citizen – who he wants to reach out to deliver justice, as he repeatedly asserts in his speeches. Let us hope that he brings about a transformation in the judicial system and the composition of the judges. But it is a long haul, and cannot be an overnight change. I am not sure whether he will be able to throw away the weight of the past baggage, or eventually accept and submit to it – as many of his predecessors were compelled to do.
To give another example of the violation of our Constitutional rights by some Supreme Court judges, I would like to refer to a judgment delivered by a bench headed by R. Banumathi and A.S. Bopanna on March 4, 2020, regarding the case of Chief Information Commission vs. High Court of Gujarat. The honourable judges ruled that if a citizen wanted copies of judicial proceedings, she could not get it through an RTI (Right To Information) request. This verdict of the judges violates the basic premise of the RTI Act, which states that all information relating to the government belongs to the citizens and they have the right to access it. The RTI Act thus falls under the jurisdiction of Article 19(1)(a) of the Indian Constitution which guarantees and protects the fundamental rights of Indian citizens. Will the two apex court judges have the honesty to acknowledge their mistake, and review their judgment ?
Sumanta Banerjee is a political commentator and writer, is the author of In The Wake of Naxalbari’ (1980 and 2008); The Parlour and the Streets: Elite and Popular Culture in Nineteenth Century Calcutta (1989) and ‘Memoirs of Roads: Calcutta from Colonial Urbanization to Global Modernization.’ (2016).
