A Thread Binds the Modi Govt's BBC Film Ban and Its Attacks on the Collegium and Constitution

Both reactions are anchored in populism.

Indira Gandhi’s Emergency was not struck down as unlawful or unconstitutional by the Supreme Court. Yet, there is no doubt that it was one of the darkest chapters in the history of our democracy.

Similarly, the fact that the Gandhi family and then chief minister Narendra Modi have not been found legally guilty of the slaughter of minorities in the 1984 Delhi and 2002 Gujarat riots respectively does not mean that they are innocent.

This is the point that the BBC seems to be making in its banned documentary ‘India: The Modi Question.’

But Amit Shah’s boast of teaching a lesson to rioters of 2002 is a new low in communal politics because it completely sidesteps the horror of the killing, rape and slaughter. And the premature release of 11 ‘sanskari’ rapists with the Union government’s approval revealed that nothing was learnt from the butchery of minorities except that it could be harnessed to promote communal polarisation for votes.

Just as Indira Gandhi’s comeback in 1980 and the stunning victory of Rajiv Gandhi in 1984 cannot erase the shame of the Emergency and the horror of the 1984 riots, so also CM Modi’s comeback in Gujarat in 2002 elections and thereafter cannot remove the taint of the 2002 riots on PM Modi.

This is also a point that clearly emerges from the BBC documentary which shows him winning election after elections even with the possibility of  him having blood on his hands.

The trend to gloss over communal and racist atrocities because of victories in the people’s court is an unfortunate aberration in democracies, and sometimes it is a direct road to fascism. Adolf Hitler, despite his open support to anti-Semitism, polled around 33% votes in the free elections of 1932 compared to 31% by PM Modi in 2014. We, therefore, need an independent judiciary, with or without popular support, to authoritatively call out and punish the excesses of the far right in democracies, be it in the US, Germany or in India.

At the same time our Supreme Court must not allow itself to be drawn into a public spat with the representatives of the parliament especially with the Vice-President of India and the law minister on the merits or demerits of the judgements in Keshvananda Bharti, the Second Judges case, and the Advocates-on-Record Association case on the issues of ‘basic structure’, the Collegium, and on the unconstitutionality of the National Judicial Appointments Commission, respectively.

Because by doing so, he would be falling into a trap being set up by them. But this is exactly what the CJI has done.  

On January 11, 2023, Vice-President Dhankhar launched a massive attack on the Supreme Court’s stand on the basic structure doctrine, on the supremacy of the constitution, and on its power of judicial review.

He said: “In democratic society the basic of any basic structure has to be the supremacy of mandate of people. Thus, the primacy and sovereignty of Parliament and legislature is inviolable…The power of parliament to amend the constitution and deal with legislation is not subject to any other authority. This is lifeline of democracy.”

Also read: To Ban or Not to Ban, That is Not For You to Question

After referring extensively to the principle of basic structure laid down in Keshvananda Bharti and the striking down of the 99th Constitutional Amendment which had created the NJAC, he said:  “No institution can wield power or authority to neutralize the mandate of the people.”

Simply put, it was being argued that the even extreme oscillations of public will as expressed by laws passed by parliament could not be interfered with by judiciary by invoking the basic structure doctrine.

CJI Chandrachud jumped headlong in this lumpenised discourse where the Supreme Court was depicted as a suppressor of democracy. On January 21, 2023, his response was categorical and diametrically opposite:

“The basic structure of the Constitution, like the North Star, guides and gives certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted…The basic structure or the philosophy of the Constitution is premised on the supremacy of the Constitution, rule of law, separation of powers, judicial review, secularism, federalism, freedom and dignity of the individual and integrity of the nation.”

The Supremacy of the constitution, with the ‘basic structure’ at its core, versus a no-holds-barred supremacy of the parliament echoing the will of the public was out in the open. But the CJI cannot win the war of perception because it neither has the resources nor the time to match a party aflush with funds, with a sea of cadres who can demonise the court.

Indeed, the outburst of the Vice-President and the law minister appeared to be threatening to do just that.

Negotiating the dilution of the Collegium is a smart move because it circumvents the declaration of NJAC as unconstitutional while at the same time it seeks to introduce it through the back door by modification of the Collegium based on principles which drove the formation of NJAC.

And while on the one hand the Modi government is negotiating through public, and possibly official channels, the dilution of the Collegium by including representative(s) of the government, on the other hand it is attacking the Collegium and ridiculing it as an insane hijacking of the constitution. The law minister while referring to a comment by Justice R.S, Sodhi, a retired judge of the Delhi high court, who had called the Collegium system a “hijacking of the constitution,” had in a tweet said that a “majority of the people have similar sane views,” thereby implying that supporters of the collegium system were insane.

The attempt to pummel and humiliate the Supreme Court through the opinion of retired judges is shocking. This, even as the Modi government itself relies on the Supreme Court’s clean chit to PM Modi to bamboozle dissent such as by the BBC. 

PM Modi has vigorously defended dissent in 2022 while promoting the film Kashmir Files by saying: “Someone sees one thing, somebody sees something else. If someone thinks that the film is not correct then he can make his own film, who is stopping him?”

Why is this position not applicable to the BBC documentary? According to the MEA spokesperson, the documentary suffers from  bias, lack of objectivity, colonial mind set, etc. But principally because the documentary casts aspersions on the authority and credibility of the Supreme Court’s clean chit to PM Modi in the Gujarat riots. So it is argued.

Is the Vice President of India and the Union law minister not casting aspersions and challenging the credibility of the Supreme Court in frontally attacking the basic structure doctrine laid down by it in the 13-judge bench judgement in Keshavananda Bharti?

Is the law minister not attacking the authority and credibility of the Supreme Court’s nine-judge order in Second Judges case by repeatedly attacking and scoffing at the Supreme Court Collegium system?

The concerted attack on the independence of the judiciary and on the core principles of the constitution as laid down in Keshvananda, is far more serious than the attack on PM Modi in the BBC documentary, which ironically is faulted on the ground that it violates the credibility of the Supreme Court, which itself is under attack by the Modi government!

After the virtual capture of the Fourth Estate by crony capitalists, all eyes are on Fortress Judiciary.

The Supreme Court did not legislate in Keshvananda Bharti. It only stated what was already there in the constitution – that there is a soul in it. It must resist the dilution of the collegium and disallow the presence of representatives of the government who have openly and categorically attacked the core principles of judicial independence and supremacy of the constitution as enumerated above.

But the Supreme Court must not fight street wars with the government representatives. Instead, it should let its judgments and orders do the talking. Instead of repeatedly requesting, on bended knees, the executive to speed up appointment of  judges, it must calmly deal with it on the judicial side. If the executive resorts to starving the high courts and Supreme Court of judges till it is made part of the Collegium, the Supreme Court must resort to new and innovative mechanisms to fill the vacancies, initially of the high courts, under new doctrines of necessity. This is necessary for the survival of an independent judiciary, and to stop the Republic of India from sliding into a banana republic. Because if the core principles spelt out in Keshavananda Bharti are given up, that’s what the republic of India will ultimately become.

Rahul Singh is a former civil servant who retired from the Ministry of Defence, Government of India.