If history is anything to go by, the higher judiciary has intervened at specific instances in the past to
protect democracy and liberties of the public. Going by the principles of delivering social justice through law, the country was gifted the remedy of approaching the Supreme Court through “public interest litigation”. This meant that not only the aggrieved could come directly to court but also those espousing causes where public interest was at stake. The concept of PILs began in the 1970s and but was taken forward by landmark judgments delivered by former Chief Justice of India P.N. Bhagwati and Justice V.R. Krishna Iyer. The aim of hearing PILs was to open up an avenue that gave a voice to the common man’s grievance against the government. Through this, the court could check the government and its authorities at various levels to ensure that it was delivering what was promised to the public.
One thing was clear, this would not come at the cost of blurred lines between the legislature, executive and judiciary. The strict lines under the doctrine of “separation of powers” have been earmarked in the Constitution. The founding fathers of the Constitution were clear that the three spheres- the legislature, executive and judiciary would operate in their own spheres and any overlap would run contrary to the basic structure of the Constitution. Despite this, the judiciary faces new challenges as it constantly finds itself getting sandwiched between causes of public and political interest and stands the risk of overreaching its judicial mandate.
While the Supreme Court inside its dome-shaped structure works towards dispensing justice, the trend of political parties using the courtrooms as their battleground is one that has been around and is here to stay. Overlap of a politically sensitive culture with constitutional principles is something the judiciary has to grapple with on a regular basis. With the common man being better educated and informed today, political parties are willing to leverage legal victories if it pleases their agenda. Seeing its upbeat effect on mainstream issues at the source level, attempts by political parties to gain brownie points with the public through judicial wins have only grown.
If one were to trail the tenure of the ruling Bharatiya Janata Party’s regime, it is conspicuous how often political playoffs are channelized through the judiciary and the manner in which they are deduced on the playing field.
A dispute that was brewing long before the Babri Masjid was razed to the ground by Karsevaks in 1992 has become a political standpoint for the BJP and its ideological parent, the RSS. The Supreme Court where the matter is pending, in its wisdom, has delayed the hearing in the case which involves a politically charged issue, more so months before the elections. A verdict on the issue, which transcends beyond being a civil land dispute as the court sees it would have a huge impact on the upcoming Parliamentary elections. A favorable verdict would signify a political win for the BJP and its affiliates, while an unfavorable verdict would lead to polarization of votes. One can also expect widespread communal disharmony and the possibility of a breakout of riots by religious communities.
The row revolving around the piece of land, on which the demolished mosque stood which is believed to be the birthplace of Lord Ram, is no stranger to its share of courtroom drama. Based on a report by the Archaeological Survey of India, the Allahabad high court ruled in September 2010 that the disputed land be divided into three parts — one-third to Ram Lalla Virajman, represented by the Akhil Bharatiya Hindu Mahasabha, one-third to the Sunni Waqf Board, and the remaining to the Nirmohi Akhara. Thereafter, the matter reached the Supreme Court in appeal the same year. For the next 6 years, there was no progress on the case.
The Supreme Court stayed the Allahabad high court’s order in 2011. Since the issue at hand is politically sensitive, the Supreme Court initially asked the parties to settle it out of court, amicably between parties. Failing this, the 13 appeals were scheduled to be heard on 5 December 2017. This was pushed to February 2018 on that day. The matter then gravitated towards the validity of the 1994 judgment holding that a mosque was not integral to the practice of Islam (Ismail Faruqui versus Union of India), at the behest of advocate Rajeev Dhawan appearing for the Sunni Waqf Board. What is noteworthy is that despite the court making it clear that this would not have an impact on the main Ayodhya land dispute which would rely on its own evidence; hours of judicial time were wasted on it. Over the 4 months that have passed since the main issue is yet to start being heard by a constitution bench.
Between the times that the matter has been pending in the Supreme Court, repeated attempts have been made by BJP leader and lawyer, Subramanian Swamy requesting the court for an early hearing. His attempts made in April, June, and July were stonewalled by the court which did not act on the requests. Dashing the hopes of the BJP and other Hindu groups, the court, despite tugs has ensured that a verdict cannot be expected before the upcoming elections.
As what may be seen as another indication of the govt’s intention of constructing the Ram temple before elections were conveyed when it approached the Supreme Court in end of January for permission for release of excess land acquired around the disputed site to its original owners. This includes the Ram Janmabhoomi Nyas which is a trust for overseeing the construction of the Ram temple in Ayodhya. Law minister Ravi Prasad Shankar has also urged the court to expeditiously decide the issue, which cannot be harnessed for political gains till it’s under the courts’ watchful eye.
With elections approaching and the political sensitivity of the sedition case against former JNU students including Kanhaiya Kumar, Umar Khalid, Anirban Bhattacharya, and others, the timing of the filing of the charge sheet by the Delhi government in January has raised suspicion on various counts; judicial and political. The charge sheet by the Delhi police being filed so late and at a time less than three months before elections hints towards a political ploy as it falls out of line with the due process established under law.
Under Section 167 of the Code of Criminal Procedure, 1973, makes it clear that the maximum period for filing a charge sheet would be 60 or 90 days (in cases of life imprisonment, death, and imprisonment beyond 10 years) and if the police do not file it within this time frame then the accused is automatically released on bail.
While it is legitimate that a charge sheet can be filed in such offences within the time prescribed if there is a limitation bar and after that, if there is legitimate evidence- there was no rationale in delaying filing till this stage. They had all the material that they needed to have which included the speech, the statement of witnesses, CDR’s, electronic evidence and records of the background that he and others were students at JNU. Considering that all of this material had partially been scrutinized by the Supreme Court when they were looking at the larger issue, the timing of the charge sheet is problematic. Although the court was focused on evidence of the episode at Patiala house court where Kanhaiya Kumar was beaten up by lawyers, it was aware that the investigation in the main issue was moving. What was the rationale of sitting on it?
Kanhaiya Kumar, along with others was arrested by the Delhi police in February 2016 on the accusation of sedition after a speech in the JNU campus in which they allegedly raised anti-national slogans. In the 1,057 days since then, the charge sheet was not filed. This has been criticized by the opposition which was of the view that this was a pre-electoral ploy by the Modi government (through the police) to distract attention from pertinent issues like employment, corruption and farmer suicides. Accused Kanhaiya Kumar and Umar Khalid, rejecting the allegations against them said that it was a diversion approach by the ruling govt, months before elections. Metropolitan Magistrate Deepak Sherawat had also questioned the Delhi police as to why the legal process had not been followed and how the charge sheet had been filed without a sanction from the state government, which is mandatory in cases that have national security implications.
The Rafale controversy over the purchase of 36 fighter jets from Dassault under an inter-government agreement between India and France in 2016 after the Narendra Modi government came into power has become a bone of contention between the BJP and Congress. The UPA government under Manmohan Singh had approved the deal and tenders were floated. Following a bidding process, Dassault aviation was selected as the supplier and an agreement was signed between Dassault and Hindustan Aeronautics Ltd in 2014. A few months after the BJP government took over from the UPA government; HAL was dropped as Dassault expressed inability in continuing with the deal.
In the last two years, the opposition has cornered the BJP over irregularities on different aspects of the deal. These include claims of Modi favoring an Anil Ambani led company over public sector HAL and inflated costing of fighter jets. The issue has been at the center stage during various Parliament sessions with Rahul Gandhi alleging that PM Modi had directly interfered in the deal and ensured that Ambani’s company, with no previous defence experience, was made part of the deal by being the off-set partner to Dassault. Dassault, on its part, has said that it has chosen an off-set partner based on the defence ministry’s offset policy that allows OEM’s to choose their defence partner.
Undeniably the issue made its way into the judicial realm with Congress party members as petitioners Prashant Bhushan, Arun Shourie and Yashwant Sinha challenging the decision making the process of the government under the deal. There was calm on the issue until the Supreme Court on 14 December gave a clean chit to the BJP with its ruling that held that it found no evidence of wrongdoing in the govt’s decision-making process or in the choice of Reliance Infrastructure Ltd as the Indian offset partner and refused to get into pricing details.
Soon after, the issue was once again gained momentum on the political forefront with the BJP claiming the judicial win and attacking the Congress for raising the issue for political gains ahead of the elections. It was able to leverage a narrow judicial win into a big political victory since the court stayed clear off pricing details and had decided the case on a restricted purview. The fact that the public could not have access to the information submitted by it in a sealed cover, accelerated the problem and raised the question of whether a forum like the Supreme Court was correct in half heartedly dived into the issue that was substantially political in its roots. Congress leaders, however, continued to push for setting up of a joint parliamentary committee for investigation into the deal.
It was presupposed that the issue had attained closure through the ruling by the country’s highest court but the Centre’s submission that pricing details had been shared with the CAG and the report examined by the PAC was submitted to the Parliament came into light for its asymmetry since the CAG report on the issue hadn’t been tabled till then. In a bid to douse any further attacks for misrepresentation in the court, the Centre filed an application for correction in the judgment. It was clarified that its submission which said that report “is” examined by the PAC was used in the present tense but was meant to signify that the normal procedure would be followed once the CAG report was ready.
On paper, the ruling government had sought to correct the judgment but the damage had been done. The opposition did not miss the chance of pointing out the falsehood associated with what was seen to be a “glaring factual error” and termed it on the courts’ part as a grotesque miscarriage of justice. They said that the government had blatantly lied in court to secure a favorable order. It also exposed the perils of furnishing important information associated with the pricing of the jets private under a sealed cover when one of the main objectives of the judicial process was to accord transparency to the deal. Therefore, not only the ruling government but the judiciary was also dragged into the controversy.
There was also speculation over how a three-judge bench of the Supreme Court had overlooked the issue on grammatical grounds by relying on documents that had been surreptitiously submitted in a sealed cover. Legal minds were of the opinion that the Centre’s application was in substance a review and there wasn’t a provision to otherwise correct a judgment.
The Centre’s correction application and a review petition are pending with the Supreme Court for over a month. In a first, an angry CJI, Ranjan Gogoi, on 16 February, defended the Supreme Court over the flak it has faced for delay in hearing the review plea as he highlighted that the review application was filed with defects and while it was lying with the registry, no effort had been made to remove those defects. Under the procedure, a plea cannot be heard by the court until defects are removed by the filing party.
While the political battle on the judicial ground on hold until the review is heard, the government has managed to get cover under the CAG report, the findings of which hold that the deal struck by the Narendra Modi-led NDA for the purchase of 36 French Rafale fighter jets was cheaper than the one negotiated by the UPA. A second win for the BJP however, hasn’t stopped the Congress from stepping up the heat on the issue that’s contentious in the run-up to the general elections as it says that the truth will be exposed once the CAG report falls flat before the public accounts committee.
In yet another high-profile case where former finance minister P. Chidambaram was being investigated by the CBI and ED for allegedly receiving kickbacks to ensure FIPB approvals for the ₹3,500 crores Aircel-Maxis deal, a charge sheet was filed by the ED in October 2018. This came after the ED’s June charge sheet against Chidambaram’s son, Karti Chidambaram for money laundering under the Prevention of Money Laundering Act, 2002 in the case. The father-son duo was also named as accused in the supplementary charge sheet by the CBI in July along with other public servants and six companies.
In the first charge sheet in 2014, the CBI said that it was probing certain irregularities in the Foreign Investment Promotion Board approvals granted to foreign firms when Chidambaram was the finance minister. While the investigative agencies claim to have filed the latest charge sheet due to certain revelations during the investigation, it can also be seen as an attempt by them to tighten its noose against the former finance minister ahead of the elections. The filing of the charge sheet though not unlawful or prohibited once again raises the pertinent question of Why Now? Why not all this time?
The efforts to delay the process and using the same as an opportunity to taint the names of opposition leaders are apparent since most of these charge sheets are filed without prior sanction. Special judge O.P. Saini in this regard had asked the CBI why it had not followed the process while attempting to prosecute Chidambaram and that this was unnecessarily adding to the courts’ pendency.
Another instance where the Supreme Court found itself between a political scuffle was over the central agency CBI, being rebuked from questioning the Kolkata police chief commissioner with regards the probe in the Saradha chit fund scam. The Central investigative agency, after being disallowed by the Mamta Banerjee-led government in West Bengal approached the Supreme Court for relief and permission to question the police chief. Legal questions as to the constitutional validity of the CBI’s actions toward the West Bengal government including proceedings with its operation without a warrant were raised but it was evidently a pre-electoral face-off between the Modi and Mamata government being played out in court.
Like most times when the Supreme Court finds itself in a sticky situation, it asked the Kolkata Police commissioner Rajeev Kumar to appear for questioning before the CBI in Shillong and cooperate with its investigation into the Saradha chit fund scam. Shillong was chosen as a neutral place for both sides. Following the impasse, both sides claimed the courts’ ruling to be their moral victory. While the BJP government celebrated the moral victory against the Mamata led government that was asked to cooperate with CBI for questioning, the West Bengal government perceived the direction of non-coercive steps towards Kumar and choice of Shillong as the questioning ground as being in its favour.
A fresh investigation into the 2003 murder of Haren Pandya who was the former Gujarat home minister has been sought under a PIL by Centre for Public Interest Litigation in view of new evidence that has surfaced. This includes D.G. Vanzara, a Gujarat-cadre IPS officer’s statement of Pandya’s murder being a political conspiracy, Journalist Rana Ayyub’s book where police officer Y.A. Shaikh disclosed that the CBI had acted on the Gujarat police’s word while further claiming involvement of several politicians and officers, including Vanzara and media reports carrying a statement by Azam Khan who was a witness in the Sohrabuddin fake encounter case.
The matter had blown up as a political controversy because Pandya was seen as Narendra Modi’s rival in Gujarat. Throughout the investigation, Pandya’s family members and certain BJP leaders maintained that the actual killers were still at large.
On 12 February, after admitting the fresh plea for investigation the Supreme Court reserved its verdict. The case may not be out and out politically motivated, but the verdict is likely to create political ripples. If the investigation is reopened, it will cast a blemish on the BJP government’s report card just before the general elections.
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