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March 21, 2020

Capitulation of the worst kind


March 21, 2020

A Hindu friend of mine refers to India’s ruling party as the Bharat Jalao Party (Burn India Party). Every time he says it, he says it with greater conviction. Given the singlemindedness with which the BJP and its leaders have been going about dismantling the republic and its once celebrated democracy, you would agree the nickname is rather apt and well deserved.

The saffron party has once again justified its notoriety during the horrific Delhi carnage last month, seen as the worst communal riots since the 1984 pogrom targeting the Sikhs. Over the past six years and more, the Hindutva party has been doing everything in its power to systematically destroy the all-embracing and liberal Indian Constitution. It has been taking apart the institutional framework and constitutional safeguards created by the founding fathers to protect the republic and its fabled religious and cultural diversity.

From ideologically infiltrating all arms of the state, including the bureaucracy, police and security forces, to saffronising the intellectual and ideological spheres such as universities, think tanks and of course the media, nothing has escaped the all-pervasive influence of the Parivar.

For far too long, we deluded ourselves that our judiciary – once the envy of the world, like our democracy – has remained vigilant and skirted the allure of power. How spectacularly naive we all were!

The nomination of Justice Ranjan Gogoi, the Chief Justice of India, who left office barely four months back, for the Rajya Sabha, the upper house of the Indian arliament, takes the breathless brazenness of the BJP to a whole new level. In a way, this is not a bad development. This at least rips away the curtain to expose the total collapse and surrender of our institutions.

As Pratap Bhanu Mehta argues in his Indian Express piece, we should be actually grateful to Justice Gogoi. “His conduct has disabused us of any illusions we might harbour about the legitimacy of the Indian Supreme Court. The government, in brazen contravention of all propriety, has given him a nomination to the Rajya Sabha. He has been shameless enough to accept it. In doing so, he has not just cast doubt on his own judgement, character, and probity; he has dragged down the entire judiciary with him.”

Perhaps no single individual has damaged the vital institution of the judiciary and presided over its emasculation as Justice Gogoi has. Heading the highest court in the land, Gogoi sat in judgement over some of the most significant and defining cases such as Ayodhya, Rafale corruption scandal, Assam NRC, which paved the way for the dreaded trinity of CAA-NRC-NPR, and of course the abrogation of Jammu and Kashmir’s autonomy and imprisonment of its leaders and people. In all these cases and others, Justice Gogoi’s SC repeatedly favoured the BJP government and let down the aggrieved citizenry.

The most bizarre of all these judgments has to be the one delivered in the long-festering Ayodhya case. Even as the court noted that the Babri Masjid demolition on December 6, 1992 was calculated and against the law and that "the Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago," it decided to gift away the mosque site to the same thugs who perpetrated the audacious crime.

It’s not just Ayodhya. There has been a deliberate method in the madness in a number of judgements. Eminent citizens like Anuradha Bhasin Jamwal, editor of Kashmir Times, repeatedly knocked on the doors of the top court for relief in the case of the Kashmir clampdown and they were turned away by the court, every time. CPM leader Sitaram Yechury and others approached Justice Gogoi’s court for justice in the case of detention of politicians and yet again their pleas fell on deaf ears.

To sum it up, Justice Gogoi methodically demolished all constitutional guarantees and guiding principles – cherished and respected as lodestars by all democracies and international law – the basics like universal human rights, non-discriminatory citizenship, the law of habeas corpus, free speech and the evidence act etc.

Not surprisingly, rights activists and opposition parties have been moaning about the judiciary enabling the executive’s assault on democratic institutions and hard-won freedoms.

Clearly, those fears had been far from exaggerated all along. And now that Justice Gogoi has got his pound of flesh and his reward, we all know why the judiciary has been acting the way it has been all this while.

The ever blunt Justice A P Shah, the former head of the Law Commission, has hit the nail on the head, calling it a clear case of quid pro quo. Justice Kurian Joseph, former SC judge, also minced no words in taking down his former colleague, noting that the Rajya Sabha gift has “shaken the confidence of the common man in the independence of the judiciary.”

Justice Joseph had been one of the four SC judges, who along with Justice Gogoi, surprise, surprise, had held an extraordinary press conference back in 2018 to protest the growing threats to judicial independence and arbitrary manner in which the then chief justice had been allotting cases, apparently under pressure from you know who.

No wonder Justice Gogoi had once been viewed as a courageous and fair judge. Delivering the Ramnath Goenka Memorial Lecture the same year, the then Chief Justice designate had gone to great lengths to stress on the importance of the judiciary remaining “independent” and “contaminated.”

Referring to an article from The Economist, 'How Democracy Dies', Gogoi had observed: “It said that ‘independent judges and noisy journalists are democracy’s first line of defence…Reports of the death of democracy are greatly exaggerated. But, the least bad system of government ever devised is in trouble. It needs defenders.”

Gogoi agreed with the late Goenka, the founder of the legendary Indian Express, known for its indefatigable spirit of speaking truth to power, noting that “fierce independence” is indeed the bedrock of justice. “This institution (judiciary) is the last bastion of hope and the one that the citizenry believes firmly, will give justice to them, come what may.”

Whatever happened to this touching belief in the judicial independence and the judiciary being the “last bastion of hope”?

Whatever happened along the way that someone with such beliefs lost no time in surrendering before the powers that be and presiding over the unprecedented capitulation of the judiciary, undermining the world’s largest democracy?

The judiciary is supposed to be the guardian and protector of the constitution and watchdog of the rights of citizens. Instead of confronting the executive over its sustained assault on the state institutions and the precious rights of the citizenry, the judiciary stood by or worse, enabled the regime.

Over the past six years, religious minorities, especially Indian Muslims, have been targeted and hunted like animals, being lynched in broad daylight, by Hindu mobs. Not once did the SC or any other court in the land see it fit to take suo-motu notice of these coldblooded killings.

This court gets all worked up over financial dues that some telecom companies owe the government. This court is worried over a closed road in Delhi but has no eyes to see the hundreds of women of Shaheen Bagh, who have been protesting against the discriminatory citizenship law for more than 3 months now. If this is the last bastion of our hopes, then God save us and save this country.

Email: [email protected]

Twitter: @AijazZaka

The writer is an independent writer and former editor.