Justice Rohinton F. Nariman, a former Supreme Court judge, delivered a thought-provoking speech addressing several critical issues in India, yesterday, at highlighting the judiciary’s role in upholding constitutional values.
“What has happened in the recent past in this country is most disturbing. And I may share with you four things that have happened this year itself”
Justice Nariman said while delivering the Smt Bansari Sheth Endowment Lecture on ‘Constitution: Check And Balances’.
His address covered four main areas of concern:
BBC Documentary Ban and Tax Raids: Justice Nariman expressed his disquiet over the ban on a BBC documentary about Prime Minister Narendra Modi and the subsequent tax raids on the BBC. He emphasized the judiciary’s responsibility in protecting media freedom, stating,
“In the beginning of the year, you had a BBC documentary – in fact you had two documentaries, speaking about our present Prime Minister, (then) Chief Minister of Gujarat. They were promptly banned. The BBC was harassed by having tax raids. This was the first, difficult questionable incident that took place earlier this year,”
“The moment there is any onslaught on the media, the Courts must be vigilant to instantly scotch it… Otherwise, you are finished. It is the watchdog. It is our watchdog and if our watchdog is killed then there is nothing that remains.”
Election Commission Bill: He then turned his attention to the bill introduced in Parliament concerning the appointment of Election Commissioners. Criticizing the proposal to replace the Chief Justice of India with a Minister nominated by the Prime Minister in the selection panel, he remarked,
“Most unfortunately, we find that a Bill was moved in the Rajya Sabha, which has now become an Act – 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. This is the second most disturbing thing because if 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.”
“According to me, it should be struck down as an arbitrary piece of legislation because it severely impairs the independence of the working of the Election Commission“
he said.
Kerala Governor’s Inaction: Justice Nariman also highlighted the inaction of the Kerala Governor, who delayed assenting to bills for up to 23 months. He criticized this as a disturbing trend, saying,
“The third disturbing fact that we found this year is Governor of Kerala, sitting over bills for periods of up to 23 months. then the Supreme Court wrapped him on his knuckles, what did he do? There were 8 such bills. One bill was assented to, seven were referred to the President. This again is a very disturbing feature. If there is a wholesale reference to the President, then the legislative activity of State comes to a standstill. Unlike Governor sending back a bill (to the State legislature), once it lands at the Centre’s door and Centre says no, that’s the death of the bill.“
He said he is waiting for the day when Supreme Court lay down that only independent persons to fill up the posts of the Governor and President.
Also read- As Judges Exhibit Boldness : Justice Sanjay Kishan Kaul (lawchakra.in)
“I am waiting for the day when the Supreme Court will lay down that ‘look, it is only independent functionaries who are supposed to fill these great offices (Governors and Presidents)’ – not the kind of people that we find today, like in Kerala. Where wholesale, after you slept over the bills, you just give them back to the President,”
he said.
Supreme Court Judgment on Article 370:
Finally, the former judge said that by refusing to decide on the conversion of the State into the Union Territory, the apex court has allowed the Union government to bypass Article 356 which states that President’s rule in a State is possible only for a yea.
Justice Nariman expressed his concerns about the Supreme Court’s judgment on the abrogation of Article 370. He questioned the decision to convert Jammu and Kashmir into a Union Territory, bypassing Article 356. He stated,
“So how do you bypass it? You bypass it by this ingenious method of making the State Union Territories, where you have direct Central control and no problem as to time. Article 356 deals with Constitutional breakdown, when Centre takes over. In no circumstances can it go beyond one year, unless there is a national emergency or the Election Commission should say elections are not possible.“
He criticized the Court for deciding this issue based on an undertaking given by the Solicitor General that statehood will be restored, saying,
“The Solicitor General does not have any authority to bind the successor government… And this is going to be a legislative act.”
Justice Nariman’s speech underscores the importance of judicial vigilance and independence in protecting democratic values and constitutional norms in India. His critique of these developments highlights the challenges facing the country’s democratic institutions and the need for a strong judiciary to safeguard the rule of law.