Finance minister Arun Jaitley has described public interest lawyers and some retired judges as “institution disrupters” and conspirators threatening the judiciary. But what about the Machiavellian disrupters sitting inside the Narendra Modi government whom former Chief Justice of India T.S. Thakur had accused of attempting a “lock out” of the judiciary by subjecting it to a relentless “onslaught”?
On behalf of a much more united Supreme Court than today, CJI Thakur had observed in October 2016,”You cannot have an institution lock-out. Most high courts are working at less than 60% strength. Why is government sitting over recommendations for appointments pending for over eight months,”. Coincidentally, he also had Justice D.Y. Chandrachud sitting by his side when he made these scathing remarks against the government.
One is recalling these observations only because Jaitley’s tweets seek to blame only one side – the opposition – for the disruption, quite ignoring the role of the ruling regime itself.
If intimidatory tactics of “Institution Disruptors” and impeachment motion are threats to judicial independence, the single greatest threat is the divided court itself
— Arun Jaitley (@arunjaitley) April 20, 2018
In another tweet, Jaitley castigates “public interest crusaders” graduating to become “institution disrupters”. Of course, what Jaitley omits to say is that these very crusaders – who he describes as consisting of lawyers and retired judges – were being greatly felicitated by the BJP when they were crusading against the corruption of the UPA-II regime with a flurry of public interest litigations.
Who can forget the manner in which Narendra Modi rode to power on the backs of such “institution disrupters”, promising them all an independent Lok Pal!
Over the last few years one has witnessed the evolution of some public interest crusaders graduating into “Institution Disruptors”. They pick-up even false causes and pursue the falsehood with a sense of deep commitment, indulge in intimidating advocacy & justice dispensation.
— Arun Jaitley (@arunjaitley) April 20, 2018
Today, the same “institution disrupters” are inconvenient to the ruling regime because they are consistently crusading against corruption and unethical behaviour, whether in the executive or the higher judiciary.
And the reason why the apex judiciary is so divided is because the Supreme Court does not seem to be responding in the way it had responded when the campaign for cleaner and more transparent institutions had peaked during the UPA-II regime. Here is where the BJP’s double standards come to the fore.
The Bharatiya Janata Party may want us to believe that ‘disruption of institutions’ is a politically motivated phenomenon aimed at dislodging the present regime. The fact is that such disruption has been gathering steam over a much longer period – at least a decade and a half – and is the result of a democratic churn which has made people demand greater transparency in delivery of governance and justice.
This clearly has not been forthcoming under the Modi regime which so far has merely maintained status quo and is happy blaming all else, mainly the opposition, for everything that is going wrong. The move to impeach the Chief Justice of India had been gravely objected to by eminent jurists like Fali Nariman and Soli Sorabjee but one recalls Nariman himself lamenting the rapid erosion of democratic institutions under the Modi regime. So the impeachment move is certainly not the primary cause of institutional erosion but seems more like a culmination of a cancer-ridden system which politicians have used to exploit and consolidate their power rather than seek to remedy the malaise.
The four-most senior judges addressed the media earlier this year as a bid to set the house in order. Credit: PTI
Jaitley is right when he says the single greatest threat is the “divided court itself”. So, why is the Supreme Court so divided as never before. The four senior most judges did not have any political agenda when they came out in public to say ” democracy was in peril”. The ruling regime cannot pretend this had nothing to do with their own conduct however much they try to close their eyes to it. One would even argue that it was the cynical machinations of the ruling regime which widened the divide between the CJI and the four senior-most judges. Such machinations did not start with Deepak Misra as CJI. It was happening even before, as observations by CJI Thakur reveal.
In fact, it must be recalled that the moment the BJP-led government came to power, it started disrupting, to use Jaitley’s term, the apex judiciary. The Centre’s very first act was to discredit, through planted stories in the media attributed to the Intelligence Bureau, the nomination of senior advocate Gopal Subramaniam as SC judge. It may be recalled that Subramaniam was specially invited by CJI R.S.Lodha to become a judge because of his stellar legal work which successive CJIs had appreciated on record. But the Centre opposed his nomination because he was appointed by the Supreme Court to oversee investigation and prosecution by the CBI in the killing of Sohrabuddin Sheikh, Tulsiram Prajapati and Kausar Bi in an alleged fake encounter case. That was the first confrontation in 2014 between the Centre and Supreme Court.
The process of appointing judges has only got messier since then, as the Centre and SC quarrel over the details of the memorandum of procedures to be adopted. Indeed, there is a profoundly toxic political backdrop against which such games have been played, culminating in the public press conference by the four senior-most judges.
What is interesting is that in many of these episodes of confrontation between the Centre and judiciary, culminating in the Judge Loya order, BJP President Amit Shah seems to figure as an important dramatis personae. Remember the Sohrabuddin-Tulsi Prajapati case was conducted under SC’s monitoring by the CBI. And it is unprecedented in CBI’s history that it should virtually disown it’s own chargesheet in a case prepared under SC’s monitoring. Isn’t this also ‘institution disruption’, one might ask.
