"Ghosts of ADM Jabalpur may have returned to haunt us again", Justice AP Shah on decline of Supreme Court

Former Chief Justice of the Delhi High Court, Justice AP Shah, on Friday said that the state of the Indian Judiciary was worrisome in the face of an all-powerful Executive. While we are told that the dark chapter of ADM Jabalpur stands buried with its overruling in the Puttaswamy judgment, the Emergency-like situation may be returning to haunt us, the judge opined during a webinar.."We are told that in Puttaswamy case, the ghosts of ADM Jabalpur had been buried deep... but I fear these ghosts may have returned to haunt us again."Justice AP Shah.Justice Shah made this statement while delivering the Justice Hosbet Suresh Memorial Lecture on The Supreme Court in Decline: Forgotten Freedoms and Eroded Rights on Friday evening. The retired judge said that the Supreme Court's "proclivity to buckle in submission" when the Executive takes a stand has not gone unnoticed by anyone..Justice Shah referred to an Indian Express report which examined ten recent cases related to Freedom of Speech and Expression, in which the Supreme Court's position as regards granting relief depended hugely on the stand that was being taken by the Executive. The cases failed when the government opposed the petitions and succeeded only when the government either supported the petitioner or did not express any objection, Justice Shah said, citing the article..The Supreme Court is becoming "more prickly" on the issues of Freedom of Expression and is coming across as an intolerant institution, the former Law Commission Chairman said. He cited the Court's decision to convict Prashant Bhushan for contempt to buttress his claim..According to Justice Shah, the Judiciary's decline began in 2014, when the BJP government came to power at the Centre. That is when all the institutions tasked with holding the Executive accountable were systematically destroyed, he said.."On paper, the Executive is held accountable to the people through the Legislature and to the Constitution and rule of law through the Judiciary and other institutions... this is all on paper. In India today, every institution designed to hold the Executive accountable is being systematically destroyed and the destruction began in 2014."Justice AP Shah.With an overpowering Executive, and a Judiciary that barely asks questions of it, a comparison can be drawn with the Indira Gandhi era, Justice Shah implied. He added that in issues where the Executive finds interest in "undermining the rights of the people in order to further its political agenda, we find the Court is being pushed against the wall"..Justice Shah also highlighted the role that courts, particularly the Supreme Court, played as being "mute spectators" in politically sensitive cases such as the Bhima Koregaon case and the Delhi riots case. In these cases, a pattern or set template appears to have been followed and people have been arrested and charged with draconian laws for merely holding ideas or making peaceful speeches, he pointed out.When one Delhi High Court judge attempted to ask questions of the government in relation to the Delhi riots case and the incendiary speeches made by a politician, he was transferred overnight, Justice Shah said, referring to Justice Muralidhar's transfer which appeared to have been rushed in the backdrop of the case.."Why are the political establishments and the police so emboldened?...It is because of the weak judiciary."Justice AP Shah.The Supreme Court played a vital role in strengthening a draconian law like the Unlawful Activities (Prevention) Act (UAPA) by giving it an interpretation in the judgment of NIA vs Zahoor Watali that favours the investigating agencies and goes against the accused , Justice Shah said. He further pointed out that now, this law is being used to lock up people who express any kind of dissent.."The government is using every imaginable means to silence any and all dissenting opinion and to clamp down on any alternate views that might exist. More problematically, the Judiciary is watching all this happen by the sidelines like a mute spectator without uttering a word."Justice AP Shah.The targets of the government primarily appear to be Muslim youths, Justice Shah said. During the course of his lecture, he also highlighted that while the change in dispensation took place in 2014, the Judiciary failed to act as a counter-majoritarian force..Not only did the Apex Court fail to perform its function in protecting the minorities "from the tyranny of the majority", it also abdicated its role as an adjudicator in relation to Kashmir's communications lockdown issue. In this light, he also referred to the Court's delayed response in taking suo motu cognizance of the COVID-19 migrant crisis..Justice Shah was also critical of the "opaque" Collegium system for appointment of judges and said that the only suitable way was for the Supreme Court to perhaps read down the National Judicial Appointments Commission (NJAC) Act to evolve a mechanism which was suitable to all stakeholders and ensured judicial independence without Executive control. However, the government that sought to bring in the NJAC at first has now stopped speaking about it, and this could be indicative of a successful penetration within the process of appointment of judges, Justice Shah said..The event also saw a brief address by Senior Counsel and President of the Supreme Court Bar Association, Dushyant Dave, who was chairing the event..Justice Shah's lecture was preceded by the conferring of the Dr. Asghar Ali Engineer Lifetime Achievement Award, 2020 on Justice Hosbet Suresh posthumously. The memento and cash award was accepted by Justice Suresh's daughters on his behalf.The event was moderated by Senior Advocate Mihir Desai and activist Teesta Setalvad.