Aadhaar to Tribunals – Far too many instances to undermine the Judiciary

I was not too surprised when I heard the news of Central government shoving Aadhaar down the throat of Bank Account holders. 

In fact, I was least surprised about the usual hushed up manner in which the Prevention of Money Laundering (Maintenance of Records) Rules, 2005 were amended to make Aadhaar mandatory for opening and operating bank accounts. Fear was giving way to resignation.

This is not the first time that this Central government was acting in violation of Supreme Court’s orders. The Aadhaar case itself has a history of transgressions by the Central government. Despite a clear mandate by the Court by its August 11 order that Aadhaar cannot be made mandatory, Central government has been coming out with one notification after another in violation of Supreme Court orders.

On January 3 and January 4 this year, the Centre issued two notifications making Aadhaar number compulsory for MNREGA and EPS.

Immediately after the two notifications were issued, the matter was mentioned on January 5 before Chief Justice Khehar by one of the petitioners through Senior Advocate Shyam Divan. Though Divan sought an early hearing in the matter, the Court brushed aside the same and declined the request.

Soon more “benefits” fell into the Aadhaar net – mid-day meal scheme, scholarship scheme, Scheme for victims of trafficking and now holding bank accounts.

The Court turned down another request for urgent listing of the matter despite the fact that its own order calls for an expeditious disposal of the case.

But is Aadhaar an isolated incident? No – there have been far too many instances in the last two years to undermine the judiciary in general and the Supreme Court in particular.

In February 2016, the Central government controlled Delhi police refused to act, despite an order of the Supreme Court, when a bunch of goons in black robes held a court to ransom. Disrupting the functioning of a court established by law became the new benchmark for patriotism and opposing goondaism inside court premises became seditious. But the Supreme Court chose not to pull up the police for abdication of Constitutional duty under Article 144.

And then perhaps the most defiant of all its actions – judicial appointments. In a string of cheeky but rebellious acts, the Centre held up the recommendations made by the Collegium regarding transfers and appointments of various judges. Prominent among them were two judges – Justice Valmiki Mehta of Delhi High Court and Justice MR Shah of Gujarat High Court whose transfer files were stalled leading to an open confrontation in the court room involving then Chief Justice of India, TS Thakur.

The Centre, through Attorney General Mukul Rohatgi, cleverly played its cards and bought time, just enough time, till the retirement of CJI Thakur.

After his retirement, the files were sent back to the collegium for re-consideration and it has now gone into cold storage.

It would be imprudent on my part to miss out on the shabby treatment of

Supreme Court by the Central government in the NJAC case post the October 2015 verdict.

The Court had left it to the Centre to frame a Memorandum of Procedure to carry out the directions in the NJAC case. A seemingly, harmless administrative task which should have been long complete was instead converted into a tug-of-war spectacle as the Centre tried to badger the Collegium into accepting a procedure deemed convenient by it – definitely get to something indirectly if you cannot get to it directly. The Court, played into the Government’s hands by sending and re-sending the MoP to the Law Ministry but failed to take up the matter on the judicial side and summon the relevant official from the Ministry.

The latest of the Centre’s acts, which has not seen much discussion, is the attempt to tacitly takeover umpteen tribunals across the country. Allegations of tribunals being subject to control by Executive are not new and have been prevalent even before the current government. However, with the Finance Act, 2017 the attempt was brazen, “shocking” and allegedly a “fraud on the Constitution”. The Madras High Court has now issued notice to the Centre in a petition filed Madras Bar Association calling out the Act as an attempt to impinge upon the independence of judiciary and a violation of doctrine of separation of powers.

Will a court which entertains PILs to pursue ways to instil patriotism in Cinema halls, yet rule that investigation into allegations of corruption against political leaders cutting across party lines including, the current Prime Minister, would tantamount to affecting functioning of Constitutional functionaries, stand up to be counted?

Unlike in 1976, there won’t be an ADM Jabalpur v. Shiv Kant Shukla. Instead, there would be a bunch of Anil Kabotras, Common Causes, Puttaswamys and Binoy Viswams. The Central government will continue its defiance and derision. It is up to the Supreme Court to choose whether to make history or resign itself and be a part of it.

Murali Krishnan is Associate Editor at Bar & Bench. He tweets @legaljournalist. The views expressed above are of the author and do not necessarily reflect the views of Bar & Bench.