In India, the judiciary needs to check that every authority of law is doing its duty in accordance with the rule of law. It is also the responsibility of the judiciary to make sure that those judges who are hearing sensitive cases and are critical of the government agencies are not transferred in such an arbitrary manner.
Aasif Mujtaba | TwoCircles.net
The month of February 2020 was one of the darkest chapters in the history of communal riots in the national capital of India. After the anti-Sikh pogrom of 1984, the violence against Muslims in February 2020 continued unabated for more than a week. A total of 53 people, mostly Muslims lost their lives and properties worth crores were destroyed. How the Muslims, who were protesting against the Citizenship Amendment Act (CAA), were targeted makes a strong case of the anti-Muslim pogrom that took place not only with the connivance of the State but also with its active sponsorship. The law & order situation in the capital was crippled and Muslims were mercilessly murdered on the streets. Over 750 FIRs were filed and hearing of these cases was taking place mostly in the Karkardooma court Delhi.
For over a year now, the Delhi Police was at the receiving end of the judiciary who had been making critical remarks against the conduct of the force. Recently, in a surprising move, Additional Sessions Judge Vinod Yadav was transferred from the Karkardooma Court in the North East Delhi to Rose Avenue Court as a special CBI judge. ASJ Yadav who was hearing several Delhi riots cases was transferred along with 10 other judicial officers including Metropolitan Magistrate Fahad Uddin.
ASJ Yadav’s stance over Delhi Police’s probe of Delhi riots
There are several instances where the remarks of ASJ Yadav had been critical of the conduct of the Delhi Police. In the State Vs Mohammad Nasir case, he imposed a fine of Rs 25000 on Delhi Police which challenged the order of the court in filing an FIR in a case where the applicant lost one of his eyes. The court also noted that police officials had miserably failed in their statutory duties. In the State Vs Ashraf Ali and Others case, his court came down heavily on Delhi Police, stating that not only the level of investigation is very poor but the police are filling half-baked charge sheets in several cases. He remarked that the police are not bothered about taking these cases to any logical end. In the State vs Shah Alam and others case, the court not only discharged the three accused Shah Alam, Rashid Saifi and Shadab but also made a damning remark for Delhi Police as to when history will look back at the worst communal riots since partition in Delhi, the failure of investigating agency to conduct a proper investigation by using latest scientific methods will surely torment the sentinels of democracy. Even a day before his transfer, ASJ Yadav in State Vs Dinesh case, remarked that the police witnesses are lying on oath and the state of affairs of the police is indeed pathetic.
Beyond an iota of doubt, ASJ Yadav was becoming a nightmare for the Delhi Police and was time and again criticizing the poor and biased standard of investigation in most of the cases. His transfer at this hour is raising natural suspicions.
The curious case of Justice Muralidhar
In a similar manner, Justice S Muralidhar was transferred last year after a bench comprising of him and Justice Talwant Singh came down heavily on Delhi Police for not registering FIRs against BJP leaders Kapil Mishra, Anurag Thakur, Parvesh Verma and others for giving inflammatory speeches that led to the Delhi riots.
Justice Muralidhar even had an emergency sitting at 1 am at his residence amid the peak of communal violence and directed the Delhi Police to ensure the safe transit of about 20 patients from Al-Hind Hospital to GTB Hospital for better treatment. The timing of this notification and his unceremonious removal amid hearing of an extremely sensitive case that resulted in the deaths of several innocent citizens was criticized to be disturbing and mala fide. What solidified the ground of suspicion was that though the same collegium on the same day recommended the transfer of another Judge, Justice Subramonium Prasad, his transfer notice was not issued with the same alacrity.
The conflict
“Governments without separation of powers commit the worst crimes,” – James Cook
The apparent instance of the executive usurping the powers of the judiciary and disturbing its working is to be seen in the lights of schemes of separation of power by the Indian Constitution.
One of the major features of the Constitution of India is that it not only separates power between various organs of the State i.e. Legislative, Judiciary & Executive but also limits the arbitrariness with which any organ can behave. This is also called the practice of check and balance. But, even then, the compartment separating the powers are not water-tight and there are many instances where one organ of the State infringes upon the power of the other. After the famous Keshwanand Bharti judgement of 1973, the manner in which one judge of Supreme Court, Justice Ajit Nath Ray was elevated to be Chief Justice leaving behind three of his seniors (Justice J.M. Shelat, Justice AN Grover and Justice K.S. Hegde) or in 1977 when Justice Khanna was superseded by another judge for Chief Justiceship after his dissent in ADM Jabalpur vs Shiv Kant Shukla Case are clear cut examples of legislature infringement over the judiciary.
In general, a strong executive (with a single majority party) at the centre always creates a weak judiciary. There have been several instances in the past where a government with an absolute majority tried to overtake the judiciary thereby infringing their powers as allocated by the Constitution.
Way forward
“A judicial system is corrupt if the truth is denied the right to be a witness,”- Suzy Kassem
It is important for the judiciary to check that every authority of law is doing its duty in accordance with the law. It is also the responsibility of the judiciary to make sure that those judges who are hearing sensitive cases and are critical of the government agencies are not transferred in such an arbitrary manner. Like the historical Keshvanad Bharti Judgement of 1973 where the constitutional amending powers of the legislature were limited or the Advocate on Record case (Second Judges case) of 1993 where the Supreme Court stopped the arbitrary manner of appointment of the Judges by the executive, it is a high time that the court should bring some decision in this regard too so that the faith in institutions of the state is not lost.
Aasif Mujtaba is a research scholar of IIT Delhi and an independent journalist based in New Delhi. He tweets at @MujtabaAasif.