The Judiciary Remains the Last Resort in a Stifled Democracy

'Where does one go in a situation in which the Executive continues to be opaque and obdurate but to the Judiciary?

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Environmental pollution snuffs out the body. Denial of constitutional freedoms snuffs out the soul.

Unsurprisingly, after the hearings on the Pegasus-related questions and appeals in the top court now seized of the matter (and how), citizens whose allegiance to constitutional democracy remains paramount were heard to say, “We breathe again.”

Nor was the earlier judgment on the right to privacy (Puttaswamy) any less life-giving.

And if the notoriously draconian and grossly misapplied Unlawful Activities (Prevention) Act and National Security Act
provisions of the law have not been slapped yet on the two women journalists just arrested in Assam for their upright reporting on the communal violence in Tripura, this may owe to repeated strictures voiced by courts at all levels against such misapplication of the said laws in case after case against civil rights workers, journalists, academics, public intellectuals, political opponents for exercising their democratic rights.

Citizens’ groups, activists and students protest against anti-Muslim Tripura violence at Tripura Bhawan in New Delhi, on October 29, 2021. Photo: Sumedha Pal/The Wire

That these uplifting and liberating judicial episodes have not been incidental but a considered, perhaps even troubled, responses to a suffocating zeitgeist is nowhere more eloquently suggested than in the detailed content of Chief Justice of India N.V. Ramana’s address the other day to the Pan-India Legal Awareness and Outreach Campaign where judges of constitutional courts were in attendance, as was the Attorney General of India.

Speaking of the persisting inequities of India’s economic and social life within a “welfare” democracy, Justice Ramana noted how well-intentioned schemes still do not filter down to those who need them most, and how the judicial system still remains a last resort.

That being so, he emphasised how the foremost task must be to “preserve, protect, and promote the independence and integrity of the judiciary at all levels”.

Significantly, the Chief Justice also underscored the need to act with “necessary boldness in the face of adversity”.

In passing, would it not be truly a bolstering act for our democracy if our media outlets (a few excepted) were to take a hint from Justice Ramana’s ‘concerning’ address, and pick up the courage to likewise remain unwaveringly wedded to constitutional principles and judicial pronouncements in the matter of citizen’s rights in the face of an overbearing Executive, rather than look perpetually at their “bottom lines”.

Review of old cases

Notably, the sensitivity of this Supreme Court extends to its responsiveness to appeals made that challenge earlier judgments in which both appellants and sections of the public have voiced reservations from time to time.

In that regard, the Supreme Court’s recent averment that it wants to see the closure report filed before a Metropolitan Magistrate’s Court in Ahmedabad by the special investigation team on the post-Godhra riots case(s) is a telling pointer: “We want to see the closure report accepted by the Magistrate. It will have reasons.”

To recall, this relates to the appeal filed by Zakia Jafri, wife of the late Congress member of parliament, Ehsan Jafri who was killed at the Gulbarg Society complex in those riots, challenging the Gujarat high court’s endorsement of the Metropolitan Magistrate’s finding, giving a clean chit to the then accused persons.

It has been the contention of the appellant in the case(s) that the SIT had ignored/overlooked vital pieces of evidence comprising police records, call records, as well as personal testimonies, and drawn its closure recommendations in the teeth of all that sidelined evidence.

It will be interesting to follow the career of the appeal in the days to come.

Logical citizen expectation

The decision of the Supreme Court to want to see the closure report on the technically done and dusted post-Godhra riots case(s) clearly also has a bearing on another case, also technically done and dusted but one that has left much to desire, namely, the one pertaining to the purchase of Rafale aircraft from the Dassault company in France.

To recall, the government of the day in India submitted a sealed cover averment on the issue to the Supreme Court which made the determination that no wrongdoing was in evidence in the transaction of the deal.

Yet, in the light of findings since then by the Mediapart journalist organisation in France to the effect that, indeed, proof exists that kickbacks were paid to a middleman, one Sushen Gupta, to the tune of €7.5 million to secure the deal, the money being paid into the Interstellar shell company at Mauritius, many look to the top court to reopen hearings in the matter with a view to getting to the truth of the transaction.

The payments apparently spanned from the earlier NDA government when Atal Bihari Vajpayee was prime minister through the succeeding UPA regime well into the life of the present government.

Records with Mediapart show that the Attorney General in Mauritius sent all relevant papers connected to the impugned kickbacks to the Central Bureau of Investigation (CBI) in the first half of October, 2018, but the latter did not order a probe, unlike the authorities in France.

It may be recalled that the then CBI director was removed from office on October 23 within a week of the receipt of those documents in what came to be called a “midnight coup”.

Also read: ‘Chronology Samajhiye’: Hours After Midnight Coup, CBI Chief Alok Verma Entered Surveillance Zone

Also to recall, that the very same middleman, Sushen Gupta was earlier found complicit in the proposed purchase of helicopters from the AugustaWestland company in Italy, upon which the then Manmohan Singh government both cancelled the deal and blacklisted the company.

It is intriguing that the Modi government has thought it fit since then to lift the blacklisted ban from AugustaWestland and render it eligible again for transactions.

Also to recall that just as the Rafale contract was set to go to the public sector undertaking, HAL, the Modi government thought it fit to intervene at the highest level to shift to an “inter-governmental” deal.

The citizen may not be wrong in thinking that in the light of developments in the Rafale case subsequent to the sealed-cover averment filed by the Modi government earlier to the Supreme Court which was accepted by the top court, the Supreme Court now, as in the post-Godhra riots case, may determine that the Rafale issue needs further judicial scrutiny in order to meet the lawful requirement to get to the truth and apportion responsibility.

Pending cases

Petitions have long been pending with the top court in regard to the dismaying delay in listing cases related to the Citizenship Amendment Act, the now revoked Article 370 pertaining to the reading down of the provision of “special status” to the erstwhile state of Jammu and Kashmir, and the legal and democratic propriety of the Electoral Bonds scheme.

Also read: Sedition, Farm Laws, Electoral Bonds: Over 200 Eminent Citizens Urge CJI to Hear Key Matters

In all three cases constitutional considerations of fundamental importance are involved.

In the Citizenship Amendment Act matter, those challenging the Act have contended that the constitution disallows grant of citizenship on the criterion of religious affiliation; challenges made to the revocation of the erstwhile Article 370 without reference to the people’s assembly in that beleaguered state likewise underscore an unconstitutional breach of a covenant made with the people of Jammu and Kashmir; and the Electoral Bonds scheme of fund collection and distribution to political parties raises grave apprehensions about the likely use of the scheme for funnelling unaccounted wealth, mostly to the advantage of the ruling party.

No one knows better than the Supreme Court that the delay in making judicial determinations in these cases continues to cause anguish to citizens whose faith in the rule of law continues to be gravely impaired by decisions that seem to offend democratic and constitutional verities, besides fostering social disquiet.

Citing Justice Ramana, the judiciary has indeed come to be the “last resort” in recent times.

That being so, the citizenry hopes that the anxieties expressed will come to see speedy determination.

Nothing would function as a more potent dyke to the flood of authoritarian predilections than such determinations, given that vox populi finds it ever more difficult to be heard with any effect in the public arena.

It will be said that the three farm laws have now been promised to be repealed. But, as farm leaders have already pointed out, this announcement has come after more than 700 farmers gave their lives to cold, disease and other inclement life conditions through a year-long protest action, having suffered vile abuse from ruling party satraps and even senior functionaries of governments, as a desperate electoral move.

Farmers celebrate at Ghazipur border on Friday. Photo: Sumedha Pal

Few will be fooled by the unconscionably cynical timing of the announcement which has everything to do with the ruling party’s self-serving fears and little with the life of the farmer.

They have also already made it known that farmers’ demands span nine important points, and that their peaceful and stoic agitation will continue till the government addresses their demands in full, and on paper.

Given the trust deficit, there is little hope that the government will likewise feel pressed on the three pending issues listed above.

As the counsel in the Jafri case has pleaded, “where does one go” in a situation in which the Executive continues to be opaque and obdurate but to the Judiciary.