Democracy turns into autocracy when the judiciary aligns with the executive. The seed of an emerging autocracy begins when the executive appoints judges who share its ideology and declares, as former CJI Sharad Bobde did, that the executive knows best because it has the resources and the experts to fight the Covid-19 pandemic. That is why the courts should not intervene. The former CJI set the policy for all courts in India.

The fact that the central government appointed former Supreme Court Justice Arun Mishra to head the National Human Rights Commission (NHRC) seemed to affirm this view that judges who agree with the government would be rewarded with post-retirement benefits. Judge Mishra openly praised Modi who sat on the dais in February 2020 for being a “versatile genius who thinks globally and acts locally”. After his retirement, the judge continued to occupy his official residence without rent well beyond his allotted month to leave, although those who retired after him left their bungalows.

During his term from 2014 to 2020, Judge Mishra rendered more than 300 judgments – many 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 attributed to him.

Caustic comments

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

But now, faced with its hands-off stance, the Supreme Court has asked the Center whether the fact that several state governments that had launched global tenders to purchase vaccines was aligned with the vaccine procurement policy. central government. The court said earlier that the Center did not submit a national policy document on Covid vaccines when the case was debated in the Supreme Court.

“Compare the budget of the municipality of Mumbai with that of a municipality in UP or Bihar or any other state. BMC has a larger budget than some of these states. Do you allow this as a policy for municipal corporations to open tenders? Asked the Supreme Court to deviate from its policy of non-interference of non-intervention.
He further added: “Your rationale for this was that the death rate of deaths from Covid-19 is higher for over 45 years. In the second wave of the pandemic, even those under 45 are suffering. “

SC intervenes

So, with the strange orange glow of burning bodies on funeral pyres, the Supreme Court ruled very late in the day that it could interfere with government policies. Apparently, the very absurdity of having the right to life in the Constitution denied by the government’s lack of preparation for the second wave of Covid-19, made the Supreme Court assert itself.

India’s Attorney General KK Venugopal reiterated in an unrelated case the entrenched principle that Parliament could pass laws to overturn Supreme Court rulings. The case involved the appointment of court members (such as NHRC Judge Arun Mishra), but Attorney General Venugopal submitted a note to the court stating that unless there was a clear violation of rights fundamental or constitutional provision, courts should not interfere in executive policy-making matters. This is precisely why the Supreme Court did not initially come to the aid of the hapless migrants who were forced to walk thousands of kilometers.

Venugopal pointed out that Parliament, in its wisdom, promulgates a law after wide consultation among standing committees and expert groups to decide what is in the public interest. If the courts intervened, it would not promote good governance, he suggested. What he did not state is that the policies developed by the government are often tailored to appease electorates or popular vote banks, rather than the overriding public interest. Do the courts have the power to suspend such political decisions?

Sedition Act

The best example is when the Supreme Court decided to review the sedition law which is misused by state governments to file FIRs against journalists, although sedition can only be invoked when there is a clear call for violence against the state to intimidate an elected government. . The Supreme Court overturned an FIR against Vinod Dua, but rejected his suggestion to create a committee in each state to monitor 10-year sedition cases against journalists.

These contradictory signals of interference or not in government policies create confusion. While striking an FIR filed by the government of Yogi Adityanath at UP against a man who used his cell phone to request oxygen cylinders for his father, Judges Dhananjaya Chandrachud, L Nageswara Rao and S Ravindra Bhat cautioned against contempt action by the Supreme Court if those appeals for help were suppressed. The judges ordered that their judgment be disseminated to all chief secretaries and magistrates in India to prevent recurrence.

Venugopal’s argument that Parliament could override Supreme Court rulings by passing laws denies the concept that the judiciary is separate and equal to the executive and parliament. Many laws are enacted after India ratifies international treaties. The United Nations Human Rights Council’s report on “Disinformation and Freedom of Opinion and Expression” will be debated on June 21 and July 9.

Pernicious amendments

Thus, it remains to be seen whether the Supreme Court will overturn pension amendment rules notified by the central government on May 31, which impose a life ban on retired officers from security agencies like R&AW, IB, ITBP, or military intelligence to write books remains to be seen. On pain of forfeiting their retirement, such “expertise or knowledge gained by working in such organizations should not be used even if supplemented by in-depth research and independent reflection from such retirees”.

Whether the Supreme Court overturns these pernicious amendments that violate the right to freedom of expression guaranteed by Article 19 (1) (a) will prove whether it is truly free and independent or whether it depends on the government for its resources.

The writer has a doctorate in law and is a senior lawyer-journalist with the Bombay High Court.