Justice In Crisis

Veiled Threat to Judiciary

Maitreyi Krishnan & Clifton D’ Rozario

In a rather paradoxical turn of events, a Lawyers’ Group including several lawyers who openly identify with the Bharatiya Janata Party (BJP) and the Sangh Parivar, had issued a letter to the Chief Justice of India on 26.03.2024, cautioning about what they call a “vested interest group” whom they allege is trying to “pressure the judiciary, influence the judicial process and defame the courts based on frivolous logic and state political agendas”. The letter goes on to add that this “heated interest group” operates in various ways – primarily by creating a false narrative of a supposed “better past”/”golden period” of the courts as opposed to its present state, and secondly, by concocting a theory of “bench fixing”. The letter further states that such modus operandi is deployed by this group “at very strategic timings when the nation is all set to head into elections”. Saying so, the Supreme Court is urged “to stand strong and take steps to protect the courts from these attacks” while assuring that the Lawyers’ Group would support the judiciary “against these underhanded attacks, making sure our courts stay strong as pillars of our democracy, untouched by these calculated attacks”. Within hours, Prime Minister Modi issued a tweet attacking the Congress for trying to “browbeat and bully others” and aiming for a "committed judiciary". Unsurprisingly also came the outpouring of support from the online right-wing ecosystem.

Bereft of any particulars or details, this “letter” is an exercise in obfuscation and misdirection. It is particularly telling for its timing. It comes on the heels of certain judicial actions that have ruffled the executive’s feathers–the electoral bond judgment declaring the scheme unconstitutional and directing SBI to disclose the names of donors (which the Modi government desperately tried to avoid), the stay on the Fact Checking Unit under the IT Rules 2021, the setting aside of the Office Memorandum of the Environment Ministry diluting environmental norms regarding linear projects and the judgment holding that it is not a crime to criticise the decision of Modi government to abrogate Article 370 and withdraw special status to Jammu & Kashmir. Moreover, it comes at a time when the Supreme Court is slated to hear crucial cases concerning the use of EVMs, the constitutionality of CAA, and the arrest of Opposition leaders and political activists.

Unsurprisingly, this letter prompted an immediate endorsement from Prime Minister Modi whose vitriol about the Congress and its desire for a “committed judiciary” made apparent what the letter was trying to imply. The irony is unmissable given the concerted attack by the Modi government on the independence of the judiciary. Vice President Jagdeep Dhankar and Union Law Minister Kiren Rijiju have taken turns to publicly berate the collegium system of appointment of judges with the Vice President castigating the Supreme Court for striking down the National Judicial Appointment Commission Act and repeatedly attacking the Supreme Court for declaring the doctrine of the basic structure of the Constitution as law of the land. Similarly, the Union Law Minister has cautioned the Supreme Court not to hear bail pleas or PILs and has accused the Supreme Court of crossing the “Lakshman Rekha guiding various institutions including the executive and the judiciary” while condemning the Supreme Court judgment on the appointment of Election Commissioners.

An indicator of the Modi government’s attempt to control the judiciary is the selective acceptance of the Court’s collegium recommendations on appointments and transfers. it has become more than apparent that the BJP is attempting to stack democratic institutions including the judiciary with people subscribing to its ideology including judges described by renowned legal academician Dr Mohan Gopal as “theocratic judges”, who look beyond the Constitution, to find the source of law in religion. Judges speak through their judgments, and the message has been loud, particularly about judges who’ve received immediate and plum post-retirement posts from the Modi government. Supreme Court judge Arun Mishra, who as a sitting Supreme Court judge praised Modi as a “versatile genius” who “thinks globally and acts locally”, was appointed Chairperson of the NHRC. Ranjan Gogoi and Abdul Nazeer, part of the Bench in the Ayodhya judgment among others, were appointed as a member of the Rajya Sabha and Governors of Andhra Pradesh. Justice Ashok Bhushan appointed as head of the National Company Law Appellate Tribunal was one of the dignitaries to attempt the Ram temple inauguration earlier this year. The latest is Justice A.M. Khanwilkar, author of key judgments favouring the government (Gujarat riots, PMLA, UAPA, FCRA), who has been appointed as the Lokpal chairperson. The icing though is Abhijit Gangopadhyay, who secured a BJP Lok Sabha ticket just days after resigning as a Calcutta High Court judge.

It is unsurprising that the “Lawyers’ Group” maintains stoic silence at this concerted assault on the judiciary by the Modi government. Unsurprising since they are part of a ploy to unsettle the highest judiciary from holding the Modi government accountable to the Constitution in any manner whatsoever. Senior Advocate Chandra Uday Singh rightly calls this the classic playbook of the autocratic to bring the judiciary to heel. He cites a 2020 scholarly article, ‘Complicity in the Perversion of Justice: The Role of Lawyers in Eroding the Rule of Law in the Third Reich’, in which the author Cynthia Fountaine writes: “The new rules of professional ethics established by the Bar mandated an ethical duty of all lawyers to show unwavering support for Hitler and his policies in both professional and personal contexts. These rules would be enforced by a new Court of Honour, which operated under the authority of the German Supreme Court as the final arbiter of professional conduct and discipline. Lawyers were penalised, and even disbarred, if they deviated from loyalty to the Nazi agenda in their personal or professional lives. For example, one lawyer was disciplined for refusing to return the Nazi salute in court because the lawyer’s failure to salute diminished the public’s confidence in the legal system.”

This letter, bereft of any semblance of constitutional morality, is an open declaration by this “Lawyers Group” of their allegiance to the Modi government, and their disregard for its attack on the Constitution and the judiciary. Michael Kirby, former Judge of the High Court of Australia said: “Where there is no independent legal profession there can be no independent judiciary, no Rule of Law, no Justice, no Democracy, and no Freedom.”

The highest judiciary failed to interfere even as the Modi Government blatantly attacked the Constitution [read: Constitution]–Babri Masjid/Ram Mandir, Demonetisation, Abrogation of Article 370, PMLA, FCRA, UAPA, EWS, among others. Perhaps this is best exemplified by the Covid cases, where the Supreme Court dismissed PILs seeking relief for migrant workers, by accepting the government’s sweeping claims. Retired Supreme Court judge Gopal Gowda declared that “ADM Jabalpur will no longer be remembered as the darkest moment of the Supreme Court. That infamy now belongs to the Court’s response to the preventable migrant crisis during the COVID-19 pandemic.”. Even so, the ruling dispensation has deployed its forces in the legal profession, at the first sign of any assertion of judicial independence, and is targeting (without naming) lawyers who, in the words of retired Supreme Court judge Madan Lokur, are doing their utmost to preserve and protect the independence and integrity of the judiciary.

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Vol 56, No. 43, Apr 21 - 27, 2024