Trust in the Supreme Court and the wider judiciary is eroding fast. This comes on the back of disappointing rulings over the past few years, inaction in some cases and what seem to be contradictory utterances. In a constitutional democracy, courts play an important counter-majoritarian function and are a check on the executive. Many think the Supreme Court is failing in these functions.
If the judiciary doesn’t take corrective measures soon, there goes our democracy. Nandini Sundar, Professor of Sociology at the Delhi School of Economics, Delhi University, speaks to All Indians Matter.
Learn more about your ad choices. Visit megaphone.fm/adchoices
[00:00:00] Hello and welcome to All Indians Matter. I am Ashraf Enjaniya.
[00:00:04] In a constitutional democracy, the courts play an important counter-majoritarian function
[00:00:08] and serve as a check on the executive. Whenever the executive poses a threat to freedoms,
[00:00:13] the judiciary is expected to correct the imbalance. This is the very core of its reason to exist.
[00:00:18] However, it is under challenge now in Modi's India. Trust in the Supreme Court, the last
[00:00:23] hope of those seeking justice and a preservation of liberties is eroding. Many think it is She has written several journal articles on democracy, authoritarianism and academic freedom. Nandini was awarded the M.N. Srinivas Memorial Prize in 2003, the Infosys Prize for Social Sciences in Social Anthropology in 2010, the Esther Bosler Prize for Development Research in 2016 and the Malcolm Adis Asia Prize for Distinguished Contributions to Development
[00:01:43] Studies in 2017. Chief Justice of the Orissa High Court posted on Twitter, it is unfortunate that I have lost fate in an institution to which I owe my existence. Nandini, where is the sense of disappointment coming from? I think the sense of disappointment is coming from at least three things. And there are many sub-themes within that as well.
[00:03:01] The first is the blatant double standards
[00:03:03] that the Supreme Court is displaying.
[00:03:05] And I'll give an example of that. side bail matters expeditiously. But the Supreme Court itself has been sitting on the bail application of Mahesh Raut since September 23, five months after the high court gave him bail. Mahesh has been in jail since 2018. It will be nearly six years now in June. And this business of high courts allowing stays on their own bail orders to allow the NIA
[00:04:22] to appeal, knowing that the Supreme Court will sit on it, is an unprecedented development the time it happened, but even then they were not willing to rule on process except for one judge. Electoral bonds we've been waiting since 2018. So basically the court favors the government by default. And when it does rule, as in 370 or DIMON, the judgments have invariably gone in favor of the government.
[00:05:41] And the third cause of disillusionment is the court's flawed reasoning when it has gone
[00:05:47] in favor of the government line on everything. Yes, absolutely. But before we proceed, Nandini, to talk about many of those cases that you specifically mentioned. I should point out to listeners that we are recording this on January 22, 2024, which is the very day of the inauguration of the Ram temple in Ayodhya, as you mentioned.
[00:07:01] And that Mahesh Rao is one of the accused in the Bhima Kaurigao case and, as you mentioned, he is still in jail.
[00:08:02] So that was a huge scandal in itself. But the court declined to go into the decision-making power process, saying it was beyond its remit
[00:08:09] under Article 32.
[00:08:11] And the same has happened with Adani.
[00:08:13] So wherever the courts are being asked to look not into, they're not being asked to
[00:08:19] judge policymaking per se, but they're to intervene. So whether you look at this Raphael case or the Adani Sebi case or the Pegasus case
[00:09:40] or any number of other cases,
[00:09:42] where there's clearly an attack on fundamental rights
[00:09:45] or criminal wrongdoing, themar has not been getting bail. Yeah, absolutely
[00:11:01] And the High Court judge as well, you know when they refused him bail said, you know, his thesis is on ethnic riots or something and Paul Brass is a known authority on ethnic riots in UP and, you know, systematic riot manufacturing. And, you know, if you're a self-respecting PhD student working on this, that is the person that you would quote. And the Delhi police is saying, you know, he is being radicalized by reading all this stuff.
[00:12:23] And you know, so is the Delhi police now not under the Delhi government. Nandini, there's also the electoral bonds case. Now there is a widespread fear that the anonymity that they allow enables coercion, political favours, corruption. The Supreme Court hasn't ruled from them either and on them either.
[00:13:41] And I think the last update was that has asked for electoral bond data from the Election
[00:13:45] Commission. huge donations and The fact that 95% of the bonds in this period went to the BJP in 2017 18 show again that you know, there's a clear connection between corporate donations the ruling regime and The policies that are undertaken so it's clearly something that is inimical to democracy the way that
[00:15:04] Elections are being rigged through an unfair
[00:16:05] R.B. Srikumar. This is for allegedly fabricating evidence about the riots. Could you talk us through that?
[00:16:06] I mean, this is both of these judgments, the Zakya Jafri Judgment and the Himanshu Kumar
[00:16:12] versus State of Chhattisgarh Judgment, both came in 2022 and both of them are really remarkable
[00:16:20] because they have targeted the petitioners and demanded that they be arrested for filing a larger criminal conspiracy which resulted in the Gujarat pogroms of February, 2002, of February, March 2002. So the judgment by Justice Kanvelkar, Dinesh Maheshwari and C.T. Ravi Kumar, and there were three aspects to their judgment. The whole judgment was really
[00:17:41] aimed at exonerating Prime Minister Modi, then Chief Minister Modi. And
[00:18:44] The crime, according to the Supreme Court in this whole complaint, was accusing Modi as Chief Minister of Command responsibility for the violence.
[00:18:48] So it's really, really shocking that rather than deal with any of the facts, they've just
[00:18:52] turned it back on the petitioner.
[00:18:56] And they've talked about, Zakia Jaffray is 83 years old.
[00:18:59] Her husband was hacked to death in front of them.
[00:19:01] The whole colony was burned. Raja who is arbitrarily Kisiko vyedeya kisiko bodeya It's not like a dan that we all have sit we as citizens have a right to appeal to our supreme court for justice Because our constitution gives us that right So it's just the most uh kind of horrendous Subversion of the idea of the constitution and the second case that happened that year was uh,
[00:20:22] the case against himanshu kumar for uh coming along with
[00:21:26] what these cases among you. It's a seemingly endless case. I'm just looking at some of my notes and there's so many such cases that we need to talk about. Next one, July 2022,
[00:21:33] lawyers criticized the Supreme Court for not allowing several first information reports against
[00:21:37] then BJP leader, Nupur Sharma, to be clubbed. Now, at the same time, the court said Sharma was,
[00:21:43] and I'm quoting the court here, single- deaths, rapes, they refuse to do anything saying we can only look at relief efforts, et cetera. It was only when that mass video of women being paraded naked and raped came to light that they then took action.
[00:23:00] So they refused to monitor or investigate cases which are really open and shut cases the RSS. And more than just the lawyers have been talking not just about FIRs. The Western Federation incidentally has now been suspended by the sports ministry. Yeah, well what sort of a step is that? Yeah, I'm not suggesting that's something that's come too late. Also, I think the revelation that the Federation was actually operating out of Bridge Bushen's house, which
[00:24:22] by itself was quite shocking. Yeah, and fine, I mean of what should have been the normal sequence. Because if the Babri Magid had not been demolished, the question that needs to be asked is whether the court would still have given the land to the VHP.
[00:25:41] Because there was a mosque at the site, would they have been willing to order a demolition to our freedom fighters, right? All of our freedom fighters, Nehru, Gandhi, were in jail for several years, right? Nine years for Nehru, 12 years, Bhagat Singh was executed. Now, Bhagat Singh never denied what he had done. He never said that I didn't throw the bomb with the assembly or, whereas Advani and others have, on the one hand, proudly taken credit for demolishing the Babri
[00:27:05] Masjid and on the other hand, claiming mediated through the courts or should be settled through the courts, it said that 1947 will be treated as the date on which, 15th August 1947, will be treated
[00:28:23] as the date on which all existing places of worship will have their religious character is evidence of that as well. So where are you going to draw the line as to what should be restored? And the Supreme Court in kind of enabling the hearings of Gyan Vyapi and the Shahid Gyan Mathura, even though the petitioners have been saying that, you know, even hearing
[00:29:43] those cases in the lower courts is prohibited under specifically talk about was Article 370. The Supreme Court has recently upheld the action that withdrew Jammu and Kashmir's special status. The court said that it can't be a permanent thing. However, it was part of the Constitution and was a promise made to Kashmir at the time of accession. Even the way Article
[00:31:01] 370 was abrogated was unusual. Now, how does something like this affect confidence in the court?
[00:32:06] all over the country by making this sleight of hand respectable, by saying that an assembly can be dissolved under President's rule, that the Parliament can take its place, and that the
[00:32:10] Parliament can then decide whether to dissolve the state itself. So this can actually, in theory,
[00:32:17] in principle, be applied to any state in this country, right? That you can just be denied your
[00:32:22] basic rights as a state, which takes away from the Hindu side which had greater evidence of faith. In the 370 case, again, they completely ignore the way in which the assembly was dissolved, the fact that the government was saying that we
[00:33:42] want to try and make a government. They tried to send a fax to the governor. And also the historians, their kind of history would not stand. I'm sorry, but this kind of judicial historical rewriting is not accepted by professional historians because it fails all the tenets of basic history and it also fails all the basic tenets of judicial reasoning. So these judgments are really quite a travesty.
[00:35:00] Nandini, what is your view of former Chief Justice Ranjan Gogoi being nominated to the
[00:35:05] Rajasabha soon after the end of his term? Again, it's interesting that in that case, Justice Gogoi said that it was part of a conspiracy to def cases that the Chief Justice power as master of the roster is surprisingly used only to mark sensitive cases that
[00:37:41] help the government to particular judges is again something that very senior I think most people who have been working on the judiciary have flagged concerns. I mean, most independent scholars who have been doing serious research on the judiciary. In terms of being bipartisan, I don't think anyone believes that it's bipartisan. I mean, the
[00:39:00] judgments have all gone in favor of marking cases. But I don't know
[00:40:22] whether the courts will reverse course as long as we have us who are, it's called the India Academic Freedom Network, and we've taken up issues of academic freedom, the censorship in universities, suspension and arrests of faculty and students. And then I'm also doing my own research, biography of Jaipal Singh, former hockey captain and
[00:41:45] Adibasi leader, member of the Constitution Assembly.