When it comes to upholding civil liberties and constitutionally guaranteed rights, a conducive environment—or the lack of it—must not be grounds for courts to determine if a case pertaining to these bedrocks of democracy can be heard or deferred. Yet, in recent times, several legal luminaries have red-flagged how curtailment of civil liberties by the executive is being increasingly normalised by the judiciary—particularly the top court.
Over the past few years alone, irrespec tive of who sat on the high throne of the Chief Justice, the lamentation that judi ciary was acting as an extension of the executive has been far too frequent. Peti tions seeking urgent hearing of mob lyn ching cases or challenging the lockdown across Jammu and Kashmir were deemed not urgent enough by former CJI Ranjan Gogoi, whose recent nomination to the Rajya Sabha by President Kovind under the ‘distinguished citizens’ quota has triggered a deafening opprobrium. Gogoi’s successor, S.A. Bobde, some say, has continued the trend with cases chal lenging the controversial CAA, atrocities on students in Jamia Millia Islamia and Jawaharlal Nehru University or alleged executive inaction during the communal riots in Delhi.
"SC judge Arun Mishra publicly hailed Narendra Modi as a “versatile genius”.
The very meaning of a habeas corpus writ—produce the body—seemed to have also undergone a metamorphosis in cases of Kashmiri leaders like Farooq and Omar Abdullah, Mehbooba Mufti or M.Y. Tarigami. Despite pleas before the apex court for the release of the Abdullahs or Mufti from their sev enmonth house arrest, the apex court, first under Gogoi and now with Bobde as CJI, remained unmoved. Farooq walked out recently, not because the SC ordered so but because the government finally allowed him. His son, Omar, continues to be in detention, as is Mufti. In Tarigami’s case, the apex court had told CPM veteran Sitaram Yechury, on the latter’s habeas corpus plea, to “visit Tarigami and inform the court about him”. Lawyer and legal commentator Gautam Bhatia terms this a “bizarre perversion of the right to habeas corpus” and says “while the court refused to pronounce on the validity of the detentions themselves, it sought to fashion ad hoc compromises in individual cases without discharging its constitutional obligation”.
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March 30, 2020