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Sunday, September 26, 2021

Courts seem slack on security issues

The relentless volley of spurious allegations in the left-liberal media that Bharat’s two key democratic institutions, the judiciary and media, have in the last seven years been reduced to clapper boys of a ‘Hindu nationalist regime’ needs to be given the lie.

Had the national media been stooges, the government would scarcely have received the kind of bad press it does in most leading dailies, magazines, not to speak of toxic social media outlets like Twitter. And Opposition party leaders and their cheerleaders from every walk of life would not dare utter the monstrosities they do in the daily shouting matches on TV known as debates.

But the focus here is on the judiciary, not the media. The impression that the apex court has been batting for the government is largely based on the decisions in three cases, two of which came in 2018:

1) The Judge Loya case in which the three-member bench led by Chief Justice Dipak Misra and Justices DY Chandrachud and AM Khanwilar refused to entertain the petitions seeking a SIT probe into the death of the judge. The court in its order of 19 April described the petitions as “frivolous” and “motivated” and intended to malign the judiciary. Three months later the same bench on July 31 also dismissed the review plea with stronger words. Judge Loya, it was affirmed, had died of natural causes four years ago. The petitioners, said the court, were instigated by political rivals to settle scores, defame the judiciary, obstruct justice, and cause injury to its independence.

2) The Bhima-Koregaon case in which the court also declined vide its order dated 28 September to interfere in the Maharashtra police’s decision to arrest five ‘rights activists’ accused of stirring violence on December 2017. The petitioners wanted an independent probe. In a 2:1 judgement, the bench concluded that Varavara Rao, Arun Ferreira, Vernon Gonsalves, Sudha Bharadwaj, and Gautam Navlakha were arrested not because they were mere dissenters but because the police had prima facie evidence in their possession that those charged had Maoist links.

3) The Ayodhya judgement of 9 November 2019 in favor of Hindus;

Set against this was the Sabarimala judgement of 28 September 2018 which should have negated perceptions of pro-government tilt by the court. In a 4:1 majority, the court ruled that Sabarimala’s exclusion of women violated the fundamental rights of women between the ages of 10-50 years and that the provision of Public Worship Rules was unconstitutional.

That the majority view was completely at variance with the spirit of Bharatiya tradition and culture was evident from the  dissenting opinion of Justice Indu Malhotra who said that in a secular polity, it was not for the Courts to interfere in matters of religion. Such matters are best left to its adherents.

Barring the Bhima-Koregaon case none of the above involved security threats from internal enemies of the state. Seen in retrospect it is surprising that the SC turned down the bail plea of the five urban naxals. The dissent note of Justice Chandrachud was more in line with the misguided liberal outlook of their lordships who are temperamentally prone to put human rights above national security regardless of the danger such an approach may pose to the body politic.

Course correction to fob off accusations of toeing the Executive’s line came in the latter half of 2019 through the convenient process of inaction. The government’s pro-active political initiatives like the Citizenship Amendment Act (CAA) and the suspension of Article 370, appeals against which are pending, may have goaded the SC to adopt a defensive posture.

The tenure of CJI Sharad Arvind Bobde (18 November 2019 to 23 April 2021) will go down in the court’s annals as the most lackluster only partially due to the advent of the pandemic in early 2020. There is sufficient evidence that the court was not prepared to cancel the designs of anarchical forces determined to disturb peace and order.

Ideally, the SC should have come down heavily on the downright anti-national protests at Shaheen Bagh bang in the middle of an important thoroughfare in the capital. Especially since the government had abdicated its responsibility in the hope that the court would do its job. The protests were putatively against the CAA but basically a jihadi plot to put the government on the mat.

The incendiary utterances made from its podium led to the Delhi riots in February 2020, but all that Bobde & Co. did was send two anti-government mediators to convince the protestors to shift to another site. The mission was a signal failure. Mercifully, the pandemic saved the day for the court, not that it would have acted any differently had it continued.

The mediators had submitted a report which, conveniently enough, was never made public. Details which emerged eight months later clearly showed that the raison d’etre of the protests extended beyond opposition to CAA. This should have been clear from the speeches made by radicalized Muslim elements like Sharjeel Imam but were ignored in the name of dissent.

The judgement on Shaheen Bagh delivered on 7 October 2020 was along predictable lines. The observations made were confined on the right to protest at designated places rather than public spots to avoid inconvenience to motorists and the lay public. There was ear shattering silence on the nature and motive of the protests.

The judgment noted, “…It appeared that an absence of leadership guiding the protest and the presence of various groups of protesters had resulted in many influencers who were acting possibly at cross-purposes with each other…”

The SC’s lack of guts was again on display during the 11 January 2021 hearing by a three-judge bench headed by CJI Bobde in connection with the three farm laws.  Rather than direct the protesting rich farmers from Punjab and Haryana to move out from the Delhi-Haryana border at Singhu, the government was made a scapegoat for its failure to resolve the issue. This, despite mounting evidence that Khalistanis were fanning the demonstrations.

None of this can hold a candle to the outrageously liberal observations made by the Delhi High court while granting bail to student activists Devangana Kalita, Natasha Narwal, and Asif Iqbal Tanha in the Delhi riots case. The first two belong to JNU, and the third to Jamia Milia. Both varsities are infamous for churning out anti-nationals and radicals.

All three offenders were booked under the Unlawful Activities (Prevention) Act (UAPA) for instigating the February 2020 riots in north-east Delhi. The root of the riots lay in the Shaheen Bagh protests against the Citizenship Amendment Act. Fifty-three people died and more than 400 were injured in the riots.

And, yet, going by the opinion of the Delhi HC division bench, the riots just happened without any intention to harm the unity, integrity, and sovereignty of the country. Asif, in particular, participated in a meeting where they were told that they were ready to riot. He also mobilized a mob of Muslims and instigated them to commit violence. The court did not find anything abnormal in the conspiratorial conduct.

The foundations of the nation, the court said, cannot be shaken by a bunch of college students inciting violence against the state, thereby suggesting that they are welcome to riot whenever they wished. Not till lethal weapons are employed, big bombs exploded, sizeable damage to public property inflicted, and scores of corpses strewn on streets could they be branded terrorists in the making or otherwise.

The provisions of the UAPA specifically discourage courts from granting bail, but the judges in their wisdom proffered the predictable logic that there was nothing prima facie to suggest that the students wanted to harm the national interest. Such activities, it was felt, come within the ambit of their right to protest which is sacrosanct.

These are the glib observations frequently made by the country’s courts which increasingly threaten to tear apart the fabric of the country. Judges with skin deep interest in national security and the doings of internal enemies should be kept out of the higher judiciary.


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Sudhir Kumar Singh
Sudhir Kumar Singh is an independent journalist who has worked in senior editorial positions in the Times Of India, Asian Age, Pioneer, and the Statesman. Also a sometime stage and film actor who has worked with iconic directors like Satyajit Ray and Tapan Sinha.

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