Retired Supreme Court judge cautions courts about four 'most disturbing' developments from 'recent past'

 The moment there is any onslaught on the media, the courts must be vigilant to instantly scotch it, says Rohinton F. Nariman

Pheroze L. Vincent, TT, New Delhi, 17.12.23, New Delhi: Retired Supreme Court judge and former solicitor-general of India Rohinton F. Nariman has cautioned the courts about four “most disturbing” developments from the “recent past”.

He referred to the ban on a BBC documentary on Narendra Modi and the harassment of the broadcaster; the revamp of the panel that selects election commissioners; the Kerala governor’s stalling of legislation passed by the Assembly; and the Supreme Court’s delay in ruling on the abrogation of Article 370 and its sidestepping of the constitutionality of the withdrawal of Jammu and Kashmir’s statehood.

“What has happened in the recent past in this country is most disturbing,” Nariman said on Friday, delivering the Bansari K. Sheth Memorial Lecture at the Asiatic Society of Mumbai on the topic “The Constitution of India: Checks and Balances”.

“First, in the beginning of the year, you had a BBC documentary -- in fact, we had two documentaries --- speaking about our present Prime Minister as chief minister of Gujarat. They were promptly banned. And after the ban, the BBC was harassed by having tax raids upon it.”

The two-part BBC documentary, Modi: The India Question, critically examines Modi’s role as chief minister during the 2002 Gujarat riots, and the plight of minorities on his watch as Prime Minister.

“The moment there is any onslaught on the media, the courts must be vigilant to instantly scotch it. If you find that there is some independent reporting which has led to something as a result of which there is a tax raid, then for that reason alone you must say that the tax raid is illegal and unconstitutional,” Nariman said.

He also red-flagged the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, recently passed by the Rajya Sabha.

“Most unfortunately, we find that the bill was moved in the Rajya Sabha…. Of course, it will go to the Lok Sabha and become an act in no time, in which the Chief Justice is substituted by a minister appointed by the Prime Minister (on the panel to select the election commissioners and the chief election commissioner),” he said.

“Now, this is the second most disturbing feature because if, as a matter of fact, you are going to get the chief election commissioner and other election commissioners appointed in this fashion, free and fair elections are going to become a chimera.”

He added: “You remember, I told you that the SC (Supreme Court) suggested that you have this collegium of three consisting of the PM, leader of the Opposition and the Chief Justice…. The SC picked up Parliament’s own practice. Because Parliament, in 2014, when you appointed the CBI director, somebody of far less relevance than the EC (election commissioner), when you appointed the CBI director, you had the same three, by legislation. And look at what has happened today.

“The SC looking at the CBI legislation… suggested these three, and these three get subverted instantly by now passing a bill and it will become an act in no time, where you will have two from the executive against the leader of the Opposition. Which is two to one always, and out goes the EC (Election Commission). So, there is not much point saying that you are going to appoint a person when you are not sure (they are) going to be independent.”

He went on: “When this matter comes up before the SC, I hope this bill, which now will become an act, will be struck down. I sincerely hope. Because if it is not, then it is fraught with the greatest danger to democracy that I can see.”

Nariman continued: “The third disturbing fact that we found this year is a governor of a traditionally minority government state, Kerala, sitting over bills for periods of up to 23 months. When the SC rapped him on his knuckles, what did he do? There were eight such bills. One bill was assented to, seven bills were referred to the President.

“If there is a wholesale reference to the President, then the legislative activity of the state comes to a standstill. Because, unlike the governor sending back a bill, once it lands at the Centre’s door and the Centre says ‘No’, that’s the death of the bill…. The scheme qua governors is also fraught with a lot of difficulties and I am waiting for the day when the SC will lay down that, ‘Look, it is only independent functionaries who are supposed to fill these great offices’.”

The fourth “disturbing” development was the Supreme Court’s delay in deciding on the August 2019 abrogation of Article 370 and the accompanying changes to Jammu and Kashmir’s constitutional status.

“You needed this (bifurcation of Jammu and Kashmir into two Union Territories) to bypass a very important article, 356(5)…. You bypass it by this ingenious method of making the state into two Union Territories, where you have direct central control and there is no problem as to time,” Nariman said.

Section 5 of Article 356 restricts President’s rule to a single year unless there is a national emergency or the Election Commission says it cannot hold polls in the state. Union Territories without legislatures are always under direct central rule.

“We have had no democratic government in this state (now Union Territory) for five years, which could have continued indefinitely. The SC did not decide this question (for four years),” Nariman said.

He criticised the Supreme Court for depending solely on an assurance from the solicitor-general that Jammu and Kashmir’s statehood would be restored.

This week, while upholding the abrogation of Article 370, the apex court had cited the solicitor-general’s assurance and refrained from giving a specific ruling on the constitutionality of the withdrawal of Jammu and Kashmir’s statehood.

“The solicitor-general does not have any authority to bind any successor government…. Second, and more importantly, he has no authority whatsoever to bind the legislature. And this is going to be a legislative act,” Nariman said.

“So, to say ‘We won’t decide’ means, in effect, you have decided. You have allowed this unconstitutional act to go forward for an indefinite period of time and you have skirted Article 356(5). These are all very disturbing things.”

The lecture was instituted in memory of Sheth, who was an honorary secretary of the Asiatic Society of Mumbai, a Bombay High Court lawyer, and a teacher at the Siddharth College of Law in the western city. Retired apex court judge B.N. Srikrishna presided over the event.