Indian nationhood completes 75 years of independence, Team TLO expounds a synopsis on what all we achieved through judicial verdicts. The transformations as what was then and now. The journey of the nation. An analysis on what went well and what went awry.
Judiciary forms the third important organ of the government after Legislature and Executive. Its primary role is to safeguard rule of law and maintaining the supremacy of law. Protecting the rights of individuals, settling disputes in accordance with the law and also ensuring that the democracy survives and does not give way to any sort of dictatorship.
In the Independent India, it was in the Year 1970, when a writ filed in the Supreme Court of India, a landmark judgement was announced to outline the basic constituents of the Indian Constitution. Keshvananda Bharti Judgement on the Fundamental Rights Case.
The Court decided to assert right to strike down amendments to the Constitution, where it seems mandatory in terms of fundamental needs. Delivered on 24th April 1973 by a razor-thin majority of 7:6 wherein the majority held that any provision of the Indian Constitution can be amended by the Parliament in order to fulfil its socio-economic obligations that were guaranteed to the citizens as given in the Preamble, provided that such amendment did not change the Constitution’s basic structure. The minority, however, in their dissenting opinion, were wary of giving the Parliament unlimited amending power.
The court held that the 24th Constitutional Amendment was entirely valid. But it found the first part of the 25th Constitutional Amendment to be intra vires and the second part of the same ultra vires.
The basic structure doctrine states that the Parliament has limitless power to amend the Constitution subject to the condition that such amendments should not change the Constitution’s basic structure. The bench did not mention the basic structure of the Constitution and it was left to the interpretation of the courts. This was subsequently laid down in several other judgements by the SC.
The court contended that the term ‘amend’ mentioned in Article 368 doesn’t imply amendments that can alter the Constitution’s basic structure. If the Parliament intends to make an amendment with respect to a constitutional provision, such an amendment would necessarily have to undergo the ‘basic structure’ test.
Another judicial landmark for the Independent India has been the Ayodhya verdict. On November 9, 2019, the Supreme Court of India decided upon a long court battle of one of the oldest civil disputes in Indian courts. The verdict was decided in favour of the parties who contested for building a Ram temple. They are referred to as Hindu parties, for convenience. The Sunni Central Waqf Board, and some Muslim residents of Ayodhya, filed Suit No.4 seeking to declare that ‘the entire disputed site of the Babri Masjid was a public mosque’. They are referred to as Muslim parties, for convenience.
The Allahabad High Court had held the three parties, i.e. Muslims, Hindus and Nirmohi Akhara as joint title holders of the property and allotted 1/3rd share to each of them.
The Supreme Court modified the High Court’s judgement. It decreed that the disputed site belongs to plaintiff’s deities (Hindu parties) and prohibited the defendants from interfering or obstructing with the construction of the new temple.
Several veteran lawyers pronounced that there is no remedy in the country anymore, while reacting to the Babri mosque demolition verdict and cautioned that the judgement acquitting senior BJP leaders L.K. Advani, Murli Manohar Joshi and others was a recipe for lawless elements to break the law with impunity.
The critics also unanimously agreed that the foundation for the acquittal was perhaps laid by the five-judge Supreme Court constitution bench’s judgement on November 9, 2018 handing over the disputed land in Ayodhya for the construction of a Ram temple even after accepting that the demolition of the mosque had been an “egregious violation of the rule of law”.
The rights activists said it was unlikely that the CBI would file an appeal against the acquittal by the special CBI court in Lucknow, given the agency’s track record. They pointed out that the CBI had not challenged the discharge of then BJP chief and current Union home minister Amit Shah in 2014 in the alleged fake encounter killing of gangster Sohrabuddin Sheikh.
The CBI counsel has said it will decide on filing an appeal against the special court verdict after consulting its legal department. But, nothing happened in that direction. Technically only the CBI as the prosecuting agency can file an appeal unless there is a complainant in the case who is also a party to the dispute. In the Babri case, there is no complainant other than the CBI and Uttar Pradesh police. However, the high courts under Articles 226 and 227 and the Supreme Court under Article 142 have inherent powers to order the CBI to file an appeal either suo motu or through a PIL.
After the verdict, Civil liberties lawyer Colin Gonzalves, referring to the acquittal, said: “What a shame!” “Nobody is punished? I would say this is a very dark day for India, for which the police and the judiciary are to be blamed. Because you can smash a mosque in broad daylight after giving an assurance to the Supreme Court, completely destroy a mosque. And nobody is punished?” Gonzalves told to media.
“This naturally follows the Supreme Court judgement on Ayodhya. It follows from that. Because if you can give the mosque over to another community, you know there is no justice in this country,” he added.
The senior advocate pointed out that the law of the land states that even if a person breaks his own property, he has to first reconstruct it and then seek adjudication of the dispute. But in the case of the Ayodhya land, Gonzalves said the Supreme Court had allowed the arguments to proceed in the matter without first seeking the reconstruction of the demolished mosque. “But here the court allowed arguments without insisting on reconstruction. So what it means is there is an incentive to any group to say this land belongs to A, this belongs to me. It’s an incentive to break and then finally file a suit and make a claim that this land is mine,” he said.
“Take the law first into your hands. It is an incentive to take the law into your hands. The judgement has been in a continuation of that principle. Nothing is going to happen, nothing is going to happen. Take the law into your hands. You broke the thing in broad daylight, nothing is going to happen to you. What a shame!” Gonzalves said.
He, however, did not agree with the view that it was time to move on. “There is no moving on. It’s like the Sikhs (in the 1984 riots). Sikhs have not got justice. How can you move on when you have lost your husbands, wives, sons and daughters in a riot, how can you move on?” Gonzalves asked. “There is no remedy in India with a weak judiciary and a very servile police force. There is no remedy in the country anymore,” he said.
Veteran lawyer Prashant Bhushan opined that the acquittal was a foregone conclusion. “It was in many ways a foregone conclusion given what the court — the Supreme Court — has done by rewarding these very people with the land where these people had demolished the mosque.”
Bhushan went on: “It will become a very old sort of thing and more important things have overtaken the country. There is a much bigger onslaught on the minorities today than the demolition of a mosque.”
Dave opined, “Well, the CBI is controlled by the executive. (Then) Chief Justice (R.M.) Lodha had said it is a caged parrot. It would be very difficult to expect the CBI to do anything. They didn’t file any appeal against the discharge of Amit Shah, whose prosecution had been ordered by the Supreme Court itself. I would be very surprised if the CBI were to file an appeal.”
The senior lawyer felt it would not be possible for any private person to file an appeal as the remedy would lie in the form of a PIL before Allahabad High Court or the Supreme Court for a direction to the CBI to lodge an appeal. “I think time has come to forget this matter as the majority of the country wanted and the Supreme Court obliged the majority and I think we should put it behind and move on,” Dave said. He added, “India is also following the same thing that Islamic countries are doing. I think in today’s world, the majority speaks and once it speaks it should be treated as final. I don’t think anybody else should have any voice against it.”
Another arguable issue has been that of appointment of judges. Legislatures, of late, are of the opinion that the process of appointment by judges themselves is disputable.
Right now, as the practice the opinion of the Chief Justice of India for appointment of a Judge of the Supreme Court has to be formed in consultation with a collegium of the four seniormost puisne Judges of the Supreme Court. If the successor Chief Justice of India is not one of the four seniormost puisne Judges, he would be made part of the collegium as he should have a hand in selection of Judges who will function during his term as Chief Justice of India.
This issue is yet to dealt by the government. Overall, in the democratic set up all three organs play a crucial role. Along with media as the fourth estate, a balance in the system is what required for the welfare of the nation. To get entry in to the developed nation category, India has to do a lot to have a comprehensive system. As citizens, we hope that the country assume all the requisites to be a strong and developed nation.
