New Delhi: From raids on BBC offices in India, to the Supreme Court’s refusal to look into the validity of the bifurcation of the erstwhile state of Jammu & Kashmir into two Union territories, former Supreme Court judge Rohinton Nariman spoke about “disturbing” happenings in India in the recent past.
He made the observations at the 30th Smt Bansari Sheth Endowment Lecture Friday on the theme ‘The Constitution of India: Checks and Balances’.
The lecture was hosted by the Asiatic Society of Mumbai in its Durbar Hall and presided over by Justice B.N. Srikrishna, also a former Supreme Court judge.
In his lecture, Justice Nariman said, “What has happened in the recent past in this country is most disturbing”, and went on to share four such instances from this year.
The first instance he referred to was the Centre’s ban on the BBC documentary India: The Modi Question that examined the 2002 Gujarat riots, and the subsequent raids on BBC offices in India.
Another disturbing feature, according to the former judge, was the Supreme Court judgment on Article 370 of the Constitution.
He highlighted the judgment’s “tremendous impact on federalism”, saying that the moment the state (J&K) was divided into two Union territories, the first question to be asked was why it was done — because the state was under President’s rule.
He then went on to explain that this (the bifurcation) was needed to “bypass” provisions under Article 356 of the Constitution, which talks about President’s rule in a state on breakdown of its constitutional machinery.
He explained that according to Article 356, President’s rule cannot exceed one year unless there is a national emergency or the Election Commission says that elections are not possible in the state. These conditions are provided under Article 356 (5).
“So how do you bypass it? You bypass it by this ingenious method of (turning) the State (into) Union territories, where you have direct central control and no problem (regarding) time,” he said.
Justice Nariman pointed out that the Supreme Court refrained from deciding on this issue on the assurance given by the Solicitor General of India that statehood would be restored for J&K.
“The Solicitor General does not have any authority to bind the successor government. We are going to have a successor government from May next year. Second, and more importantly, he (Solicitor General) has no authority to bind the legislature. And this (restoration of statehood) is going to be a legislative act,” he said.
“So, to say ‘we won’t decide’ means, in effect, you have decided. You have allowed this unconstitutional act to go forward for an indefinite period of time and you have skirted Article 356 (5),” he added.
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‘If the watchdog is killed’
Justice Nariman also spoke about the onslaught on the media, and asserted that courts must step in, in case of such an onslaught.
“The moment there is any onslaught on the media, the courts must be vigilant to instantly scotch it,” he said. “If you find that there is some independent reporting which has led to something as a result of which there is a tax raid, then for that reason alone you must say that the tax raid is illegal and unconstitutional.”
“That is the only way you can protect the media and this country. Otherwise, you are finished. It is the watchdog. It is our watchdog and if our watchdog is killed, then there is nothing that remains,” he added.
He also referred to the collegium system of appointment of judges to high courts and the Supreme Court. He called it “the worst”, but added that “then there’s nothing better”.
However, he suggested that in the future, there may instead be a collegium of retired judges, who may be elected by practising lawyers of the Supreme Court and the high courts.
“Because the bar are our judges, judges have judges, and we are judged all the time by practising advocates,” he explained.
On EC appointments & governors
Referring to the third “disturbing feature”, Justice Nariman spoke of the Bill introduced by the Centre on the appointment of election commissioners (ECs), after the Supreme Court ordered that the chief election commissioner and ECs should be selected by a panel comprising the prime minister, chief justice of India (CJI) and the leader of Opposition, until Parliament enacted a law.
“Most unfortunately,” he said, a Bill was introduced to substitute the CJI with a minister nominated by the PM.
The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, was passed by the Rajya Sabha on 12 December.
The former judge said: “If you are going to get the Chief Election Commissioner and other Election Commissioners appointed in this fashion, free and fair elections are going to become a chimera.”
He asserted that the Bill should be struck down by court “as an arbitrary piece of legislation because it severely imperils the independence of the working of the Election Commission”.
A fourth disturbing instance that Justice Nariman referred to was the Kerala Governor (Arif Mohammed Khan) sitting on the bills passed by the state legislature for a period of up to 23 months.
When the Kerala government took the matter to the Supreme Court, Justice Nariman recalled that out of the eight bills, the Governor gave his assent to one and referred seven to the President.
Calling it another disturbing feature, Justice Nariman said: “If there is a wholesale reference to the President, then the legislative activity of the state comes to a standstill. Unlike our Governor sending back a bill, once it lands at the Centre’s door and the Centre says no, that’s the death of the bill.”
He highlighted the importance of independent people being appointed as governors, and said: “I am waiting for the day when the Supreme Court will lay down that, look, it is only independent functionaries who are supposed to fill these great offices. Not the kind of people that we find today, like in Kerala, where wholesale, after you slept over the bills, you just give them back to the President.”
(Edited by Nida Fatima Siddiqui)