The Supreme Court, Indian Parliament | Source : wikimedia commons
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Ordinarily, the onus of proving an accused person’s guilt beyond doubt rests solely on the prosecution. Unless backed by solid, incontrovertible proof, the prosecution’s submissions before the court are looked at with scepticism, never to be accepted as presented. All that the accused has to do is successfully rebut the charges levelled by the prosecution, which is usually the government. This is what the principle of natural justice really translates into. But in India these days, things are different.

Citizens are getting lynched by mobs over fake WhatsApp or Facebook forwards, truncated videos of speeches are being used to discredit a section of society, attempts are being made to browbeat the judiciary into toeing the government’s line. These are times when a routine transfer of a judge – former Delhi High Court Judge S. Muralidhar’s shift to the Punjab and Haryana High Court – turns into a hurried late-night exercise, hours after the judge had come down heavily on the agencies of the Narendra Modi government and a police force under its command for their inept and clearly partisan handling of hate speeches. All of this was at play during and in the aftermath of the Delhi riots.

But nothing illustrates this better than the curious case of activist Harsh Mander. Last week, the Supreme Court was hearing a plea filed by Mander on the alleged hate speeches by BJP leaders and others and the subsequent inaction of the Delhi Police in registering FIRs against them.

Suddenly, the Delhi Police counsel made a clever play and turned the issue on its head by directing the court towards an earlier speech given by Mander, projecting it as anti-court. And, the bench headed by Chief Justice of India S.A. Bobde seemed somewhat convinced by the arguments of the counsel.

As the focus shifted to the allegations against Mander, which were made on the basis of a truncated clip of his speech video, the issue of hate speech was pushed to the backburner.

Courts cannot and should not always accept the police or the government’s version at face value. The government should not be granted an easy pass. In fact, the bar must be raised higher for a government making counter-claims against a citizen as compared to a citizen building a case against the government.


Also read: Supreme Court can’t show weakness when people’s lives lie in the hands of murderous mobs


Courts for the government

All this and much more explains why there has been a surfeit of instances of Indian courts showing a greater tendency to stand with the Modi government and its agencies, often to the detriment of the rule of law.

On rare instances when the courts seemingly don’t, it becomes a matter of surprise for the people who start praising the judiciary and renewing their hopes.

On Sunday, when the Allahabad High Court decided to take suo motu note of the brazenly arbitrary and unconstitutional action of the Yogi Adityanath government in Uttar Pradesh to put up banners with names, addresses and photographs of anti-CAA protesters, many on social media hailed the “bold” move by the high court. Not surprisingly, some questioned the high court for making strong observations in the matter.

The hearing and the deeply divided debate it sparked only underlines the fault lines that the judiciary has to tread in these politically charged times. But the fault lies as much with those running the higher judiciary than with those (read Modi government) trying to control it. As has been the case in the last few years, whenever the Modi government has tried to corner the judiciary, there has been little or no push-back.

Instead, what we have seen is a growing tendency of Indian courts to take a nationalistic view on matters legal, ignoring that a political party’s definition of who a patriot is or what constitutes as love for the nation may be entirely different and not in sync with the larger worldview. These differing worldviews must at all times be allowed to exist, least of all by the judiciary. This is what the holy grail – the Constitution of India, which should guide the judiciary’s actions – says.


Also read: Supreme Court judges gushing over Modi is a problem for judiciary and democracy


A less-talked-about culprit

Another important factor that may be the cause of Indian courts going wrong on the issue of protecting citizens’ rights that the Modi government’s unlawful actions are bent on curbing is the newly-evolved system of jurisprudence through sealed envelopes.

In several cases, the Modi government has shared material or purported evidence against the accused in sealed envelopes.

No one knows what is in those envelopes. More often than not, the courts ignore the importance of placing the purported evidence under the lens so that its veracity can be checked and it can be ascertained that this ‘evidence’ will stand the test when put on trial.

But it’s worrisome that the accused or their counsels face difficultly in challenging the ‘evidence’ when they have no idea of what’s inside those sealed covers.

It is high time the courts became more aggressive in questioning the BJP government, especially on actions that breach the citizens’ rights.

The author is a senior journalist. Views are personal.

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17 COMMENTS

  1. Here are two interesting comments made by CJI
    1) ‘Country Going Through Critical Time’: CJI Says Decision On CAA Validity Only After Violence Stops
    2) We can’t stop such incidents from taking place — CJI Bobde on Delhi communal riots
    Question is since when hearing of cases was connected with violence and who stopped judiciary taking Suo motu cases based on available information about violence.

    Let us keep in mind reception of justice is equally important. Is judicary measuring up the the expectations of its responsibilities?

    • Minor correction:
      Let us keep in mind perception of justice is equally important. Is judicary measuring up the the expectations of its responsibilities?

  2. Comment:
    A suggestion for both Theprint and Opera:
    Just stop this bullshit and anti-govt crap.
    Start giving clear solutions to problems.

    • Govt is litigant in most of the cases . Start appointing more judges, give more to judicary, have fast track courts for cases of MP and MLA. Who stopped govt from doing this?

      Does the presumption of innocence apply to govt? Answer is certainly NOT. Govt can’t claim innocence to what is happening in the country. After all you can’t wake a person that is pretending to be asleep.

    • Can govt claim to be innocent to what is happening in the country?

      Here are suggestions:
      1) Appoint more judges, increase budget of judiciary, fast track cases of MPs, MLAs and also cases against govt (Govt is litigant in important and majority of cases. )

      2) Delay transfer of judges who are hearing important cases in the name of justice for citizens of India like following two cases
      M.K. Dave, a special judge hearing the case of Naroda Gam massacre, part of the 2002 riots, has been transferred by the Gujarat High Court in a shuffle of district judicial officers. The trial of Naroda Gam was at the fag end with only the final argument of accused former Gujarat minister and BJP leader Maya Kodnani was left in the case before pronouncement of judgement.
      #2
      Transfer of justice Muralidhar, who rapped police over Delhi violence, could also have been delayed..

  3. Judgments of fact require dispassionateness; judgments of value depend on personal experience &/or interest. Judgments of fact can be easily verified while value-judgments cannot.

    Isn’t morality after all a matter of convention and not based on facts or hard truth? What we have in India is disharmony in the society as a result of inversion of morality where concepts of right and wrong had traded places with each other. Judiciary is supposed to be friend of weak. Et tu, Brute?

  4. Looks like the bhakts have discovered this website judging from the comments here.
    Also – Bobde is an invertebrate at best and malicious and prejudiced at worst.

  5. I am laughing so hard that its painful! I know the author didnt intend to make anyone laugh, but still his double standards are ridiculous. He writes ‘Justice bobde seemed somewhat convinced’…now any seasoned journalist would thing at least three times before using such language. Whats is the definition of ‘somewhat convinced’? Who gave the right to this author to decide what the CJI ‘seemed’ like? I would say this is a blatant attempt to browbeat the judiciary before the judgment is pronounced by the court. Secondly, he cast completely unfounded aspersions on Justice Murlidhar’s transfer. The justice himself has confirmed that HIS CONSENT WAS TAKEN and the transfer order was passed on 12th Feb itself. I think such insinuations do not harm the judiciary that much, but rather harm the credibility of those making these insinuations. Lastly he casts aspersions on the ‘sealed envelops’. I believe that people such as the author himself, and some other of his ilk, can do serious damage to the security of the nation and its citizens if they are provided with sensitive information regarding national security matters. They can achieve this by sharing such information in an attempt to run down the Govt & the country to achieve selfish ideological gratification. This is my view and this also seems to be the view of the Govt. The govt is well justified to provide sensitive information to only the learned judged and keep it out of hands of individuals like the author & others. Such information must be sealed and only on need to know basis. If the SC knows, its enough. Lastly Yogi Adityanath. I am sure to the author and his friends modi now seems like a messiah. Get ready for yogi days 2029 onwards. Its possible, and whats possible might happen!

    • Sealed envelopes are an opportunity to subvert justice. They are also the perfect chance for the government to hide facts, and present twisted ones, which cannot be refuted at all.

      Sealed envelopes have been used in cases like the IPL betting scandal, Bhima Koregaon violence, etc. What national security is involved in these?!

      Justice must be seen to be done, or else the judiciary will suffer from a crisis of credibility – which is not good for anyone but the ruling party.

  6. 1. It is clear that author of this article sees everything wrong with NDA regime. His argument that even the Courts are subservient to NDA government is not only without any substance but it is also ignorant of what happened in the past, when Congress/UPA governments were in power. 2. In this context I wish to recall how our late PM Shri Rajeev Gandhi surrendered to the Muslim fundamentalists and how his government, with brutal majority in Parliament, enacted The Muslim Women (Protection of Rights on Divorce) Act, 1986. I think this one single Act of then Congress government can be used to question secular credentials of the Congress. 3. I wish to give here one more example of past sins. 3 (a) Late PM Rajiv Gandhi made an unpardonable error of not accepting that the government in power in 1984 in Delhi miserably failed to protect innocent Sikhs, who were killed in riots after assassination of Smt Indira Gandhi on 31st October, 1984. 3 (b) It is necessary to recognize that even after thirty five years, in 2019 many Sikh families who lost their near and dear ones in 1984 riots feel and feel strongly that justice has been denied to them. 3 (c) Let us also not forget an important fact in this connection: one of the many accused in 1984 anti-Sikh riots, an influential Congress politician and former MP, has been sent to jail in the year, 2019, yes, almost 35 years after the anti-Sikh riots happened. 3(d) I believe that the Central government should have shown political will and administrative courage to give justice to affected Sikh families after 1984 riots, within a reasonable time. 3(e) If culprits of the 1984 anti-Sikh riots had been firmly dealt with in an expeditious manner, it would have been a different story in 2002 in Gujarat. I say that if there was a precedent of firm handling of 1984 riots, 2002 riots in Gujarat would have then been brought under control far more quickly and resolutely, even by intervention from the Centre. But alas, we wish to forget the 1984 riots and talk about other riots. It is sheer hypocrisy.

    • Very surprised you didn’t invoke Nehru also!!

      The wrongs of the past don’t justify its repetition in the future. Yes, strong action was required against perpetrators of the earlier Delhi riots. Let’s hope strong action is taken this time, so that it will not be repeated.

  7. You have published this article as an Oped, but you do not mention the credentials of the author and also define it as oped at very end. I find this as irresponsible journalism.

  8. Hindus are observing the following acts of the judiciary:
    – poke nose in Sabarimala, but backtrack when it comes to Muslim women in mosques
    – open court for terrorist in the night, but delay Ram Mandir case for 125 years
    – take suo moto cognizance of posters even during Sunday, but never take suo moto if Hindu girls are abducted, raped and converted in love jihad
    – interfere in Diwali festival citing air pollution, but say nothing of Bakr-Eid when millions of goats are killed and blood causes water pollution in many towns
    – interfere even in the height of Dandi, but never in any Muslim or Christian festivals

    So they will support a strong leader like Modi to protect their interests from the Left-Liberal ecosystem of politicians, pseudo-intellectuals, Bollywood, judges and media.

  9. Yes!! In a democracy, the judiciary’s first loyalty is to the people, not the government! Funny that the court focused on the speech of a man trying to bring peace, instead of those whose words directly instigated the murder of so many people!! Why are Kapil Mishra and the policeman beside him in the video not arrested?!

    The Chief justice says they are not equipped to handle riots! Well, if people like Anurag Thakur were arrested, the riots may not even started in the first place! The rioters were guaranteed persecution from the law – which emboldened them. No action had been taken against people like Komal Shah, nor against police excesses during the Jamia violence till date!

    How can an ordinary, powerless person have any confidence in the keepers of the law?!

  10. My daughter is a solicitor. She understands the law, I understand a bit of life. Tell her, by the time a person has spent a few years on the High Court, certainly by the time he is elevated to the apex court, one look at the paper book and the Judge knows pretty much what the score is. That is supplemented by hearing just a few arguments by learned Counsel from both sides. Not easy to hoodwink a judge, sell him a false narrative. So there can be no simple or innocuous explanation for what the column describes.

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