Government policies need judicial scrutiny, writes Olav Albuquerque

Democracy turns into an autocracy when the judiciary aligns itself with the executive. The seed of an emergent autocracy starts when the executive appoints judges who share its ideology and declare, as former CJI Sharad Bobde did, that the executive knows best because it has the resources and the experts to tackle the Covid-19 pandemic. This is why courts should not interfere. The former CJI laid down the policy for all courts in India.

The fact that the Central government appointed former Supreme Court judge Arun Mishra to head the National Human Rights Commission (NHRC) seemed to affirm this view that judges who saw eye to eye with the government would be rewarded with post-retirement perks. Justice Mishra openly praised Modi who was sitting on the dais in February 2020 for being a “versatile genius who thinks globally and acts locally”. After retirement, the judge continued to occupy his official rent-free residence well beyond the one month allowed for him to vacate although those who retired after him had vacated their bungalows.

While in office from 2014 to 2020, Justice Mishra delivered over 300 judgments - a large number being pro-government. The four judges who held a press conference on January 12, 2018, had him in mind because all sensitive cases, including the Loya case were assigned to him.

Caustic comments

Justice Mishra’s acceptance to head the NHRC evoked caustic comments from lawyers such as Prashant Bhushan, who was fined Re 1 for committing contempt of court by the same judge just before he retired. Human rights violations are filed against the government, which is why nominating a pro-government judge like Justice Mishra to head the NHRC when Covid-19 pandemic deaths have ravaged the economy is seen as a smart ploy by the government, to ensure its coffers will not be further depleted.

But now, in a volte face from its hands-off stance, the Supreme Court has asked the Centre if the fact that several state governments which had issued global tenders to procure vaccines, was aligned with the vaccine procurement policy of the Central government. The court earlier said the Centre failed to submit a national policy document on Covid vaccines when the case was being argued in the apex court.

“Compare the budget of the Mumbai municipal corporation with that of some city municipal corporation in UP or Bihar or any other state. The BMC budget is more than that of some of these states. Are you allowing this as a policy for the municipal corporations to open tenders?” asked the Supreme Court in a departure from its hands-off policy of non-interference.
It further added, “Your rationale for doing this was that the rate of mortality of Covid-19 deaths is higher for above 45 years. In the second wave of the pandemic, even those under 45 years are suffering.”

SC steps in

So, with the eerie orange glow of burning bodies on funeral pyres, the Supreme Court decided very late in the day that it could interfere in government policies. Apparently, the very absurdity of having the right to life in the Constitution negated by government unpreparedness for the second wave of Covid-19, made the Supreme Court assert itself.

Attorney General of India K K Venugopal reiterated in an unrelated case the well-entrenched principle that Parliament could enact laws to overturn the judgments of the Supreme Court. The case related to the appointment of members of tribunals, (like Justice Arun Mishra to the NHRC) but Attorney General Venugopal submitted a note to the court stating unless there was a clear violation of fundamental rights or any constitutional provision, courts should not interfere in matters of executive policy-making. This is precisely why the Supreme Court initially did not come to the succour of hapless migrants who were forced to walk thousands of miles.

Venugopal pointed out that Parliament, in its wisdom, enacts a law after broad consultation among standing committees and expert groups to decide what is in public interest. If the courts interfere, this would not be conducive to good governance, he implied. What he did not enunciate is that the policies framed by the government are often suited to appease electorates or popular vote banks, rather than the overarching public interest. Do the courts have the power to stay such policy decisions?

Sedition law

The best example is when the Supreme Court has decided to relook the law of sedition which is being misused by state governments to lodge FIRs against journalists although sedition can be invoked only when there is a clear call for violence against the state to browbeat an elected government. The apex court quashed an FIR against Vinod Dua but it rejected his suggestion to set up a committee in each state to monitor sedition cases of 10 years’ standing against journalists.

These mixed signals to interfere or not in government policies create confusion. While striking down an FIR lodged by the Yogi Adityanath government in UP against a man who used his mobile phone to ask for oxygen cylinders for his father, Justices Dhananjaya Chandrachud, L Nageswara Rao and S Ravindra Bhat warned of contempt action by the apex court if such pleas for help were suppressed. The judges ordered their judgment to be circulated to all chief secretaries and magistrates within India to avoid recurrences.

Venugopal’s submission that Parliament could override Supreme Court judgments by enacting laws negates the concept of the judiciary being separate and equal with the executive and Parliament. Many laws are enacted after India ratifies international treaties. The United Nations Human Rights Council report on “Disinformation and Freedom of Opinion and Expression” will be debated on June 21 and July 9.

Pernicious amendments

So, whether the Supreme Court will strike down the Pension Amendment Rules notified by the Central government on May 31, which impose a lifetime ban on officers who have retired from security agencies like R&AW, IB, ITBP, or the military intelligence from writing books remains to be seen. On pain of forsaking their pension, such “expertise or knowledge gained by working in such organisations is not to be used even if it is supplemented by thorough research and independent thinking of these retirees”.

Whether the Supreme Court will strike down such pernicious amendments which violate the right to free speech guaranteed by Article 19 (1) (a) will prove whether it really is free and independent or dependent on the government for its resources.

The writer holds a PhD in law and is a senior journalist-cum-advocate of the Bombay high court

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