BJP Rule Must Go

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The 12th of January, 2018, is an unforgettable day in the history of Indian Judiciary. It was on this day that four Justices of the Supreme Court –  Chellameswar, Kurian Joseph, Ranjan Gogoi and Madan Lokur voiced in public three complaints:

  1. The Prime Minister is dragging his feet on the finalization of a Memorandum of Procedure for the appointment of Judges.
  • Chief Justice Deepak Mishra is under the influence of extraneous forces in the case regarding the mysterious death of Judge Loya.
  • Chief justice Deepak Mishra as master of the roaster is arbitrarily constituting benches and passing cases to them expecting particular outcomes that are favorable for the ruling BJP.

In essence, the four esteemed judges pointed out that Freedom of the Judiciary is in jeopardy. “If we do not protect the Courts that ensure equality and honor, if they fail to be impartial in their approach, “Democracy cannot survive in this Country” – Justice Chellameswar’s statement was clear.

These accusations were not denied by the Union Government or the Chief Justice of India. The four Justices have not withdrawn their accusations till date. Three of them, other than Ranjan Gogoi maintain that the same precarious conditions continue to prevail until now. They express concern that the Judiciary’s support to the Union BJP Government persists and is worsening by the day.

Ever since the BJP came to power in 2014, it has taken persistent steps in multifarious ways to keep the judiciary under its leash. For achieving this, Mr Narendra Modi has been invoking his power to appoint or not to appoint and to transfer Judges, as an important weapon.

The Supreme Court of India has 34 judges including the Chief Justice of India. The Collegium that appoints judges of the state High courts has been functioning since 1993.

The selection committee that appoints judges of the Supreme Court consists of the Chief Justice and four Justices next in the order of seniority to him. This committee sends recommendations to the Union Government of India regarding the appointment of Judges of the Supreme Court. It was customary that the President accept the recommendations and appoint the Judges. But after Modi came to power, this procedure has come to an end.

For the  appointment of Judges to the respective State High Courts, recommendations are made by the Collegium consisting of the State Chief Justice and two justices next in the order of seniority. Recommendations made by the Collegium are forwarded to the Supreme court. On the basis of these recommendations, the Chief Justice of the Supreme Court and two seniormost judges recommend the appointment of judges.  Recommendations of the State Government are also taken into consideration for these appointments.

The Union Government can request reconsideration of the recommendations of the Collegium on grounds of suitability or security. But if the Collegium chooses to ignore the objection of the Union Government and insists on implementation of its recommendations, the Union Government must accept the recommendations and appoint judges accordingly. At present Mr. Modi does not relish accepting recommendations of the Collegium in the matter of appointment of judges to the Supreme Court.

In 2005, in the Sohrabuddin Sheikh false encounter case, the then Gujarat Home  Minister Amit Shah was accused.  In this case, Mr. Gopal Subramaniam was the amicus curiae. For this reason alone the BJP government refused to appoint him as a judge when the collegium recommended his name.

Justices Jayant Patel and Qureshi, Judges of the Gujarat High court, acted honestly when the case against Mr Amit Shah, the Home Minister of Gujarat in the fake Encounter killings, came up for trial. The Gujarat Government wrought its vengeance on Jayant Patel by transferring him, but as  he could not proceed on transfer, he was forced to resign his post. Senior Justice Qureshi was denied appointment as a Supreme Court Judge.

In order to put an end to the selection of judges by the Collegium, the BJP Government passed the 99th Amendment to the Constitution in Parliament to do away with the present collegiums system, and to replace it with a National Judicial Appointments Commission.

In 2015 itself, a judgment of the Supreme Court Bench consisting of five judges struck down the 99th Amendment to the Constitution. The Supreme Court also declared that the National Judicial Appointments Commission for appointing judges was an attempt to scuttle the freedom of the judiciary.

The Modi government reacted to this by dragging its feet on, and putting in abeyance, the  appointment of judges recommended by the Collegium. The situation persists till date.  When the names recommended by the Collegium appear to be at odds with BJP politics, they are not appointed as judges!

In Tamil Nadu, senior lawyers Ajmal Khan and John Sathyan were not  appointed as judges even after their names were  recommended by the Collegium.

There are crores of pending cases in the Indian courts. 87% of these cases are pending in the district and other lower Courts.  In India, it takes years to secure justice in a civil case. Chief Justice Y.V. Chandrachud himself has admitted that in Civil Courts, judgment is seldom obtained during the lifetime of the litigant.

It may take roughly 320 years for the disposal of all these  pending cases! And 70% of the prisoners in Indian prisons are under-trials. Only 4.5% of the accused are convicted.

In August 2019, the BJP government repealed Article 370 of the Indian Constitution, split the state of Jammu & Kashmir, and abrogated its status as a State of the Indian union. When the Union Government left the State without a legitimate elected government during the last five years, detained all political leaders under the Public Safety Act and suppressed and repressed people with a heavy hand, the Supreme Court remained silent! There are more than 13,000 detainees – from children to senior political leaders; more than 600 Habeas Corpus Petitions have been filed. But the Supreme Court did nothing! On the contrary, the Supreme Court has given approval to the Union Government in respect of repealing of Article 370 of the constitution!

When the BJP government passed the Citizenship (Amendment) Act (CAA) in 2019;

when the National Register of Citizens (NRC) was implemented in Assam and 19 lakh people were deprived of citizenship; when the Union Government unleashed terror and violence on non-violent protesters throughout the country, the judiciary stood paralysed overall.

The case against the CAA is kept indefinitely in abeyance. But the indefinite street protest against CAA was ruled as unlawful – particularly the protest of the Muslim Women in Shaheen Bagh. On 11th March 2024 the BJP government has announced the guidelines for the implementation of the CAA of 2019.

The 2018 Electoral Bond Act, with the ulterior purpose of amassing huge amounts for the ruling party, was passed in Parliament through the  backdoors – without presenting it in the Rajya Sabha – in the guise of a “Money Bill”. Only a recent Supreme Court judgement has declared the Act as unlawful. There is no way to recover several thousand crores of rupees amassed as donations from Corporates. More than 50% of such donations have gone to the coffers of the BJP.

Even during Emergency (1975-77), those arrested under the MISA had an opportunity of challenging it as violative of Article 21 of the Constitution. Numerous cases were filed and they were heard immediately by a Constitution Bench appointed by the then Chief Justice of the Supreme Court. But Chief Justices in office after 2014 have not constituted such Constitution Benches for the speedy disposal of crucial constitution cases.

The Supreme Court that ruled as unlawful the demolition of Babri masjid in 1992, the same Supreme Court that had ruled as unlawful the placing of the Ram Idol inside the Babri Masjid in 1949, has now, by its bizarre judgment in 2019, handed over the Babri Masjid site for building the Ram temple!  This infamous judgement has been pronounced by a 5 member Bench of the Supreme Court!

One of these five judges has been appointed Member of Parliament in the Rajya Sabha. Another judge has been appointed Governor. A third judge has been appointed Vice Chancellor of the National Law University. The fourth judge has been appointed Chairman of the National Company Law Appellate Tribunal! 

The Chief justice of BJP-ruled Karnataka State High Court, who deprived Muslim women of their right to education by denying their Hijab rights, has been appointed Chairman of the Law Commission and a Judicial Member of the Lokpal!

The BJP government has earned one more dubious distinction in India – exploiting the police force to take wreck vengeance on political opponents. From 2014 onwards, 124 cases have been filed against senior political leaders.  Out of them, 118 are undertrials. 95% belong to the opposition parties. Not one of them to the BJP.

Not only opposition parties, but human rights activists are also targeted by the BJP government. It’s a blackmark on the supreme court that activist Teesta Setalvad was imprisoned invoking a judgment of the Supreme Court.

# As there is no likelihood of release on bail in UAPA  (Unlawful Activities Prevention Act) and PMLA (Prevention of Money Laundring Act), these Acts have been misused by the BJP government against opposition leaders and human rights activists, detaining them in prisons for years on end. The judge who pronounced such judgments, the same judge whose verdict facilitated the imprisonment of Teesta Setalvad, has recently been appointed Chairman of Lokpal by the BJP government!

More than 8,300 have been imprisoned under the draconian UAPA in the last 5 years and the most of them are Muslims.  Muslim students have also been imprisoned under the UAPA. In Tamilnadu, even  lawyers who appeared in court for an organisation declared unlawful were imprisoned under UAPA. The death of Father Stanswamy, an octogenarian, imprisoned under UAPA has become a testimony to the draconian nature of UAPA and  BJP rule. 

These are cases in point that go to vindicate what would happen if the last resort of the people – the Courts – do not honor the Constitution.

Of course, there have of late been a few honest and radical judgments that shed light on the honor of the Judiciary. A judgment gave women the right to visit the Sabarimala Temple.  Another judgment exposed the fraudulent methods adopted in the Chandigarh Mayor Election and set aside the ill-gotten result. The present Chief Justice Y.V. Chandrachud deserves appreciation for his boldness in declaring as unlawful the Electoral Bonds, and also causing to make public the quantum of funds amassed by political parties in India through these Bonds. 

The  BJP government has enacted three new criminal laws. These laws were passed with no debate in parliament, while 146 opposition party members of parliament had been suspended. To name the threesome, Bhartiya Nyay Sanhita Act, 2023 replaced the Indian Penal Code of 1860; Bhartiya Sakshiya Sanhita, 2023 replaced the Evidence Act of 1872; Bhartiya Nagrik Suraksha Sanhita, 2023 replaced the Criminal Procedure Act of 1973. 

The BJP boasts of doing away with colonial laws and bringing forth the new laws in their place. But, they are named in Sanskrit, contrary in spirit to Article 348 of the Indian constitution which makes English mandatory for the contents of such laws! A deliberate attempt at Sanskritisation! 

Even the nominal change smacks of the old. Though names have been changed, these so-called new laws represent nothing new either in content or in form. Eighty per cent of the provisions of the New Penal Law were in the 160-year-old IPC itself. The 50-year-old Criminal Procedure Code has been amended from time to time;  it was last amended in 2018.

Human rights activists have expressed concern that these new laws bestow unlimited powers on the Police Authorities, thereby curtailing human rights to a large extent. A person under arrest can as of now only be taken to police custody within 15 days of arrest, whereas the new law permits the same upto 90 days. This prolonged time (6 times 15 days) can throw the floodgates open for unimaginable police atrocities. Entrusting the power of freezing of property, handcuffing and using force to arrest persons by the Police is likely to lead to false-encounter killings.

The new crimes now added to the Penal Law, reflect the political outlook of the ruling party. They project peoples’ simple protests as ‘acts of terrorism’. Even a peaceful demonstration against the government can be branded a ‘terrorist act’.

The BJP rulers who boast of repealing the colonial sedition law have now made the erstwhile Sedition Act more draconic and add ‘new political motives’. Branding even passive resistance as challenging the sovereignty, unity and integrity of India is not at all acceptable. Crimes named so under Special Acts are now made crimes under regular laws. Criminalization of speeches in public meetings is an assault on the right to freedom of expression.

Giving old laws a new nomenclature in Sanskrit cannot make them ‘new laws’.  No progressive provision has been added to these laws with an object of reformation and rehabilitation of the convicts. Capital punishment has not been abolished; its scope has instead been expanded. Providing for unremitted imprisonment until death in certain cases is something that goes against the principle of reformatory penology.

Arundati Roy, the well-known social activist, is right when she says that in today’s India you are arrested not because of what you did, but because of who you are!

Rule of law and people’s welfare are the fundamentals of Democracy. Fascism stands squarely against both. The BJP government is rule of fascism. To protect the freedom of Judiciary, the BJP rule must go. It is the duty of those who practice law on a daily basis –  judges, lawyers and law students –  to protect the rule of law. Let us use our vote as a weapon to stop the BJP in its tracks and chase down the Modi regime! The legal community has a duty to make the masses aware of this! Let us awake! Let us awaken! Let us defeat the BJP coalition and save Democracy!

Justice Hari Paranthaman is a retired Judge of Madras High Court

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