Scrutinising the house of justice

Deciphering the law Venkatesh Naik, Suhrith Parthasarathy, Apurva Vishwanath and Vakasha Sachdev; (Below) Nitin Sethi   | Photo Credit: K_MURALI_KUMAR

Centre for Law and Policy Research in collaboration with National Constitution Society chapter of St. Joseph’s College, organised a day-long, intensive conference that reviewed the Supreme Court (SC) decisions of 2019 at St. Joseph’s Institute of Management, Bengaluru. The conference comprised three panel discussions on the topics -- strengthening democracy, SC reform and verdicts concerning religion and faith.

Students from various law schools of Bengaluru had eagerly gathered to know how the judiciary functioned in the year, what features of Constitution were upheld (if they were), the kind of discourses held by the highest court of the land to arrive at some of the landmark judgements and more.

The conference was open to the public as the organisers felt working of the judiciary should be understood by not only students of law but also students from all spheres and concerned citizens. As landmark judgements by the SC would have far-reaching effect on the fundamental fabric of democracy such as -- judicial independence, equality, due process of law, fair electoral process and equal treatment of religions, scrutiny of such decisions was felt critical to democracy.

“Law students must be taught to read judgements critically.” Vakasha Sachdev

“It’s time we teach law students how to study judgements critically and stop placing SC on a pedestal. Actually there hasn’t been a culture of critique of the judiciary in the Indian system which has led to blatant judicial evasion,” Vakasha Sachdev of The Quint suggested. Answering a question from a student, he further clarified: “criticism does not mean you oppose all the decisions or lose faith in the judiciary. But one should know where to draw the line and that’s what legal education is all about.”

The question of ‘what can/cannot come under money bill’ had come before the SC yet again with the enactment of Finance Act, 2017 as a money bill. It is pertinent to mention here that Aadhaar Act was also passed as a money bill in 2016. Explaining the various judgements concerning money bills in a nutshell, advocate Malavika Prasad laid emphasis on the dissenting opinion of J. Chandrachud in Rojer Mathew case delivered on November 13, 2019. “J. Chandrachud argued that the word ‘only’ in Article 110 of the Constitution becomes very crucial in deciding whether a bill can be regarded as a money bill or not. The said article permits the passage of those bills whose provisions deal with only matters relating to taxation and government spending. He further emphasised on the role of Rajya Sabha in representing the interests of the States and held that ‘Bicameralism’ (legislature which has legislators in two separate assemblies), is an essential feature of Indian democracy,” quoted Malavika. Under the garb of money bill, any bill that significantly alters public law cannot be passed by avoiding the upper house’s right to reject, opined the first panel consisting of Malavika, journalist Nitin Sethi and RTI activist, Venkatesh Nayak.

Two other significant matters related to electoral democracy that came before the SC this year were issues concerning electoral bonds and voter-verified paper audit trail (VVPAT). Speaking on electronic voting machines (EVMs) and VVPAT, Venkatesh Nayak felt: “Mere technological fixes do not address the issue of transparency. What if the software is hacked and the complete vote data is replaced within seconds? Information collected by us through RTI applications and in-congruent responses from the public authorities and EVM manufacturing companies reveal that there is more to this issue. After getting the product specification of EVMs, we were shocked to know that EVMs being used in the general elections do not possess read-only memory which means they can be tampered with between the stage of voting and counting. But the companies and the election commission have denied this fact,” he informed.

When matters that challenge fair electoral process come before the court, court is often not equipped to deal with technological matters. “For instance, Bombay High court asked the forensic unit at Hyderabad to examine an EVM which was produced as evidence in a case filed by an aggrieved MLA from Maharashtra. But we found out later that the tests forensic unit conducted were highly inappropriate. Not just that, the expert who produced the verification test results before the court was, in fact, a ballistic expert!” he quipped.

Coming to the electoral bonds scheme introduced in 2018, Business journalist Nitin Sethi finds the concept of electoral bonds itself highly problematic, as they fail the test of democracy from the yardsticks of transparency and equality. “Electoral bonds are bought generally by giant and resourceful entities and therefore the party in power will be obliged to return them in monetary terms during their rule. Also, this is advantageous to the ruling party or bigger parties. Electoral bonds are a way to legitimise illegal funding channels for elections,” he opined.

As the SC hears this matter during the next month, the journalist hopes that it upholds transparency of electoral process, especially with regard to party funding.

In the second panel, speaking of judicial independence, journalist Apurva Vishwanath with a hint of sarcasm, observed: “SC seems to have discharged its duties very efficiently this year with so many cases being disposed of, from Rafael controversy to Rahul Gandhi case (regarding his remarks on the chowkidar slogan)! The apex court spent its 40 long days on the Ayodhya dispute.

But the same court didn’t find time for issues pertaining to Kashmir. And nobody knows what actually happened to the sexual harassment case filed against CJI Ranjan Gagoi.”All these developments are going to corrode the trust people have in the judiciary, she feared.

Vakasha posed questions regarding the arbitrary transfer of judges. “Why was Justice Akil Kureshi’s appointment as CJI of the Madhya Pradesh cancelled? If he was well qualified to be the CJI of Tripura why not for MP then?” asked Vakasha, adding, the fact that there is no reasoning given for such arbitrary decisions by the collegium was discomforting. Advocate Suhrith Parthasarathy too mentioned that the collegium system for appointment of judges has been problematic throughout.

Lastly, the third panel comprising Hon’ble Justice (retired) of the HC of Karnataka, Ashok Hinchigeri, Advocate Jayna Kothari and Assistant professor of NALSAR, Sidharth Chauhan discussed the most controversial judgements, namely, the Ayodhya and the Sabarimala. If the retired Justice saw Ayodhya as purely a land title dispute, Sidharth argued that the dispute is surely more than a property issue. “It is an interesting exercise to document the behaviour and statements of judges, advocates, witnesses and nature of evidence produced for this case. Seeing it from a law and society angle, it leads us to several questions -- how did both the sides manufacture evidence? Are judges constrained by Majoritarian sentiments? Do judges arrive at a particular decision keeping in mind the probable communal violence? Further, looking at it from the political angle, the dispute has aided a political party to build its strong electoral base in the last few decades,” he explained. Even if it is seen as a property dispute, “how far do you go in history?” he asked adding that these questions rather need to be resolved at the cultural or civilisational level.

Commenting on the Sabarimala verdict, if J. Hinchigeri wishes that the SC leaves religious matters to those practising the religion in the pending review petition, Jayna Kothari welcomes the verdict adding that temple entry of women relates to gender equality.

The conference was indeed a one of its kind. The fact that it brought academicians, advocates, journalists and students of law on a single platform was another welcoming feature.

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Printable version | Apr 13, 2021 10:40:18 PM |

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