Has the Supreme Court, long praised for independence and fearlessness, suffered some erosion of its tough impartial image, and allowed itself to be seen tilting towards BJP? This question will inevitably arise after four successive Supreme Court judgments in the last week that all went BJP’s way, albeit with caveats.
Four in a row can be a coincidence, and does not prove a political tilt. Besides, the caveats in the verdicts can be seen as evidence of judicial independence. Yet many analysts fear that the forces turning India in a saffron direction are affecting the courts too. India needs a Supreme Court that is not only impartial but seen to be so.
In the Babri Masjid case, the court held that Hindu idols had been smuggled into the mosque, which was later destroyed illegally in 1992. Yet the disputed site went to a trust to build a Ram temple. Muslims got an alternative mosque site that was bigger but lacked any historical or cultural connection. Many secular Hindus and Muslims were sorely disappointed.
In the second verdict, the Supreme Court dismissed the petition of the Congress and others to review an earlier court decision saying no irregularities or corruption had been established in the Rafale aircraft deal. The Congress will try now for a parliamentary inquiry, but that will go nowhere after the Court verdict.
In a third case, the court agreed to review its Sabarimala Temple verdict decreeing that young women (who might be menstruating) had a fundamental right to enter the temple regardless of Hindu claims that this was prohibited by tradition. Hindus have cheered this as an opportunity to renew the ban on entry of young Hindu girls into Sabarimala. However, the court held that the review will cover not only the Sabarimala case but also clashes between religious faith and women’s rights in other communities like Muslims, Parsis and Dawoodi Bohras. Some members of these communities, though by no means all, will say they are being dragged unnecessarily into a Hindu dispute.
The fourth SC verdict in the Karnataka defection case has (as in the Babri Masjid case) slapped the BJP on the wrist yet left it smiling. In Karnataka, the Congress and JDS had a coalition with a slim majority that looked like lasting since the anti-defection law prohibited defections. But the BJP cleverly “persuaded” — Congressmen say “paid” — 17 coalition legislators to resign, leaving the BJP in a majority that brought down the government in a no-trust motion. Seeing through this strategy, the speaker disqualified the 17 MLAs under the anti-defection law for the full life of the elected assembly, so that they could not reap any ministerial reward from disguised defection. The court has now upheld the disqualification but struck down the period of disqualification. This means the 17 MLAs can contest the by-elections caused by their resignations, and if elected, become ministers. This will reward those that plotted to evade the spirit and letter of the anti-defection law.
Those sceptical of judicial impartiality should remember that the Supreme Court intervened in April 2017 (under Modi’s rule) to revive CBI charges against top BJP leaders — including Lal Krishna Advani, Murli Manohar Joshi and Uma Bharti — of conspiracy to demolish the Babri Masjid. This was certainly not toeing the BJP line, and gladdened those that prize judicial impartiality.
The case was filed in 1993 and dragged on for years in the lower court, which dropped charges. The high court refused to change that verdict. A petition was filed in the Supreme Court by the CBI for fresh prosecution. The court agreed, clubbed together all charges and decreed a new expeditious trial in Lucknow with no transfer or retirement of the presiding judge till completion of the case by April 2020.
Advani and others have long claimed the demolition was a spontaneous act of the mob, not directed by them. But the Liberhan Judicial Commission denounced the BJP leaders in no uncertain terms and accused them of helping plan the destruction.
By now eight of the 21 accused, including Vajpayee and Ashok Singhal, have died of old age. Advani is 92. One must hope that the case clears the lower courts and permits a clinching Supreme Court verdict before all the BJP leaders die. If not, this will be one more judicial move that looks impartial but leaves the BJP smiling.
