In times of crisis, like the ongoing pandemic, there are heroes and zeros. Some rise to a challenge while others fail to do so. But when institutions fail in their duties to the nation because those who man these instructions may be seen as failing to discharge their onerous Constitutional obligations, they should be criticised vociferously.
And so we have a highly-respected senior advocate like Harish Salve rushing to the defence of the Supreme Court of India for being criticised for having failed the migrants. Salve cautioned all and sundry not to convert the Supreme Court into a dartboard at which to shoot arrows. He sought to draw a distinction between "constructive criticism" and criticism of individual judges, which, according to him, was unwarranted and unnecessary.
The trigger for his ire apparently was the criticism of the apex court by another senior advocate Dushyant Dave, who pointed out that a two-judge bench of the Supreme Court was not ready to hear, leave alone admit a petition filed by an advocate who sought relief for migrants being forced to walk for thousands of kilometres while others were allegedly forced to pay for their train tickets while being deprived of wages.
"What can we do? We cannot stop them from walking," riposted the bench while dismissing the petition. Dave had pointed out how the same Supreme Court showed alacrity to stay multiple FIRs against a high-profile TV anchor accused of spreading communal poison through hate speech.
The point here is that the message being conveyed to the masses was the rule of law was only available to the high and mighty like the TV anchor who was on a first-name basis with all senior counsels while poor and illiterate migrants were left to fend for themselves.
The right to protest is a hallmark of democracy. More so, when the government-of-the-day is seen to not be proactive in dealing with the plight of migrants -left without food, water or wages.
And so the right to criticise institutions like the Supreme Court, Parliament or the government and the Bar Council of India is a fundamental right enshrined in Article 19 (1) (a).
A vital point here is the Supreme Court of India is one of the few courts in the world which appoints itself- a high prerogative which the Modi government is now trying to regulate if not curtail altogether.
A nine-judge bench of the Supreme Court used its ingenuity to create the collegium system to appoint judges and transfer them with or without their consent in 1993 in what is known as the Second Judges case on Supreme Court Advocates on Record Association case. In this case, the nine judges reviewed the earlier SP Gupta case to create the collegium case for the first time.
The nine judges gave primacy to the Chief Justice of India to appoint judges and transfer them. The government's role was minimal in having an Intelligence Bureau inquiry. Or at most, seeking a few clarifications on the choice of putative judges chosen by the collegium.
The collegium system was devised without any Act of Parliament and even without being envisaged by those who framed the Constitution.
Over the decades, the collegium system degenerated into a syllogism for nepotism where according to a senior collegium member, Justice Jasti Chelameshwar, not infrequently the kith-and kin of judges were selected in secrecy as trade-offs between the senior judges. No records were ever kept of the discussions at these collegium meetings, according to Justice Chelameshwar. This is why he consistently boycotted collegium meetings.
With no option left, a former CJI TS. Thakur was forced to agree to more transparency in collegium proceedings.
Justice Chelameshwar had to pay dearly for his indiscretions. He was given unimportant labour matters to hear- a field with which he was unfamiliar with. When the then CJI TS Thakur retired, Justice Chelameshwar was conspicuous by his absence.
But to fast forward after the January 12, 2018 press conference, what alarmed the four iconoclast judges has become a reality.
The print media seems to have been emasculated with all the mainline daily newspapers in English, Hindi, Marathi, Telugu carrying identical pieces on their op-ed pages as a Letter from the Prime Minister Narendra Modi addressed to: 'All My Dear Fellow Citizens. The letter and another piece written or ghost-written by BJP leader Amit Shah serve as propaganda pieces on the op-ed pages of India's leading national dailies in all languages. Of course, there are some exceptions.
Coming in the wake of CJI Sharad Arvind Bobde's announcement during a lecture that the Modi government had the men, money and materials to provide relief to the people during the COVID-19 pandemic. "The judiciary should not interfere with the government and leave the latter to do its job," he declared on the assumption that the government knows best what is good for the people and what is not.
Of course, after severe criticism from retired Justice Ajit Shah and senior counsels like Dushyant Dave, Gopal Sankaranarayan, Prashant Bhushan, a three-judge bench of the Supreme Court did take the government to task on the migrants' issue. But that may have been too little too late.
The point here is that a senior advocate like Harish Salve is doing a disservice to the nation by bullying those who are seen to be bullying the Supreme Court - an institution which should be seen to be impervious to criticism.
And when the print media aligns with the judiciary to shower praise on the government, there is something seriously wrong with our democracy.
For the judiciary and the media have separate roles to play as watchdogs of government lethargy and indolence. With the greatest of respect to CJI Sharad Bobde, he is wrong when he says the government knows best what is good or bad for the people. Nobody expects the judiciary to interfere in government policies. But as in the 1975-77 Emergency, the judiciary may not be discharging its duty as a custodian of fundamental rights -- of the migrants - who enjoy the same right to life as the high profile TV anchor who was grilled by the Mumbai police for hate speech after the Palghar lynching.
So, when Harish Salve protests that we should not criticise individual judges, that is his personal opinion. It is the judges who comprise the Supreme Court. And it was Ranjan Gogoi who admitted during a TV interview that the government cleared the files of putative Supreme Court judges.
It is this same government which has publicised its achievements on the op-ed pages of all the national dailies. Our pragmatic Prime Minister Narendra Modi has written in the English language - a language in which he cannot claim fluency.
The judiciary is a homogenous organ which appoints judges to the Supreme Court under Article 124 (2) and to the high courts under Article 217 respectively.
Similarly, the media is a heterogeneous entity with disparate and variegated ideologies. What appears to have united both the judiciary and the print media is the acceptance of what the government wants to say. No inconvenient questions asked of the government.
And so there seems to be a congruence of widely disparate provisions in the Constitution. Article 19 (1) (a) seems to have been aligned with Articles 124 (2) and 217
For a layperson, this means the Narendra Modi government is vociferously exercising its right to propaganda through the right to free speech of its individual ministers like Prime Minister Narendra Modi and Union Home Minister Amit Shah. At the same time, there seems to be a return to the era when the government has a decisive vote in appointments to the Supreme Court and 24 high courts.
This, in effect, would imply governance of the majority for the majority and by the majority. Majority rule will prevail when the print media and the judiciary concur with the government.
For it is the government which distributes advertisements and transfers inconvenient judges to inconvenient high courts.
(Dr Olav Albuquerque is a senior journalist-cum-lawyer of the Bombay High Court. He holds the MSc., LLM and PhD in Law.)