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Union Minister Ravi Shankar Prasad points out how judiciary’s independence was compromised by the ‘ecosystem’ decades earlier

For the first time in the history of India, the Congress government had superseded three Supreme Court judges to appoint Justice A N Ray as the CJI who has opposed the basic structure doctrine in the Kesavananda Bharati case.

In an article written by Union Minister for Law and Justice and Communications and IT Ravi Shankar Prasad published in the Indian Express, he launched a scathing attack on the recent trend of the opposition of launching vicious attacks on the judiciary in order to undermine its credibility and at the same time resorting to motivated litigation to hamper the issues that are not to their liking. Prasad also remembered the famous seer HH Kesavananda Bharati who recently passed away. His petition had led to the passing of the landmark judgment delivered by a Bench of 13 judges that introduced the doctrine of basic structure. The Doctrine of Basic structure implies that there are certain fundamental of basic features in the Constitution that cannot be altered, even by way of a constitutional amendment.

In his article, Prasad gave a glimpse of the tainted ‘legacy’ of the Congress party which is full of attempts of muzzling the judiciary. Here are the highlights of his piece:

  • After the landmark judgment establishing the Basic Structure Doctrine in the Kesavananda Bharati, Justice Sikri retired the next day but contrary to the convention his successor was not announced before his retirement. For the first time in the history of India after independence, the office of the Chief Justice of India was filled by superseding the deserving judges. The three judges (Justices J M Shelat, K S Hegde and A N Grover) on the Bench who had supported the Basic Structure Doctrine were superseded by the Congress government and Justice A N Ray who had opposed the doctrine was made the Chief Justice of India.
  • Soon after Justice Ray was appointed as the CJI, another Bench was constituted to ‘review’ the decision in the Kesavananda Bharati case. (However, the proceeding was abandoned. No record of that review proceeding is found as there were restrictions on the press reporting of the judgments.)
  • Prasad was a student activist in the movement against corruption and misrule which was led by Loknayak Jayaprakash Narayan. After the Allahabad High Court verdict (delivered by Justice Jahgmohan Lal Sinha) which had set aside Indira Gandhi’s election to Lok Sabha, the Emergency was imposed resulting in the arrest of opposition leaders. An amendment was then passed to validate Indira Gandhi’s election retrospectively and was even upheld by the Supreme Court.
  • A large number of arrests were made during the Emergency including arrests of politicians and newspaper editors. Even the High Court judges who had upheld the freedom of the people who were detained, were not confirmed. In the infamous ADM Jabalpur case, wherein the majority of judges had held that individual liberty could be suspended during the Emergency, Justice H R Khanna emerged as the sole dissenting voice upholding individual liberty. However, this cost him the position of the CJI. The Congress government once again superseded Justice Khanna who was the senior-most judge and appointed Justice Beg as the CJI.
  • Prasad mentioned that some of the leaders in the top brass of the BJP including PM Modi, Vice President Venkaiah Naidu, Defence Minister Rajnath Singh, late Sushma Swaraj, late Arun Jaitley, current BJP President JP Nadda and himself had suffered while opposing the Emergency.
  • Attacking the Congress party, he said that the people who now run motivated campaigns expressing artificial concern for the independence of the judiciary have an ideological heritage of celebrating the superseding of judges and justifying the atrocities of the Emergency. On the other hand, the top leaders in the present government have a legacy of standing up for freedom of individuals, freedom of media and the independence of the judiciary.
  • Prasad also mentioned how a senior sitting judge of the Supreme Court (Justice P N Bhagwati) had written a congratulatory letter to Indira Gandhi on her coming to power in 1980.
  • The landmark judgment of the Supreme Court in the Shah Bano case which empowered the Muslim women was nullified by Rajiv Gandhi while PM Modi showed immense commitment by introducing the law against triple talaq after the Supreme Court judgment declaring the practice of triple talaq as unconstitutional.
  • He said that his party and the government is committed to the independence of the judiciary and are proud of the extraordinary legacy of the Supreme Court and the High Courts in pursuit of freedom, empowerment, equity and containment of corruption.
  • Pointing out the challenges to the independence of the judiciary in current times, Prasad explained how Public Interest Litigations (PILs) are filed and social media campaigns are launched to pressurise the judiciary into delivering the judgment of their liking. If the judgment is not as per their liking then a vicious campaign is launched against the judiciary which is an expression of the “my way or the highway” attitude in such people.
  • Comparing the Congress legacy with the rule of the current government, Prasad said that a number of adverse judgments have been delivered by the Supreme Court since the current government came to power including the judgment against the National Judicial Appointment Commission (NJAC), setting aside of President rule in Uttarakhand and ordering a floor test, another similar judgment ordering floor test in Karnataka and a similar intervention in the case of Arunachal Pradesh Assembly.
  • He also listed some of the petitions pending before the Supreme Court against the government’s decision of abrogating Article 370 and passing the Citizenship Amendment Act as well as the frequent directions by the court in the ongoing Covid-19 pandemic. He said that certain people are disappointed as there are no allegations of corruption against the government these days which was the other way round under the UPA government.
  • He termed the unsuccessful attempts of the Congress Party to impeach the sitting CJI with the help of senior lawyers close Congress party and the subsequent petition after the Chairman of the Rajya Sabha refused to grant sanction of impeachment as the biggest blot o the independence of judiciary in recent times.
  • Prasad concluded by warning the opposition not to try to control the polity and governance through ‘collusive cases’ in the Supreme Court and other courts.

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