Election Commission responsible for spreading Covid-19, should probably be booked for murder: Madras HC // Bharat Bhushan on the departing CJI: Good riddance

NB: It is unusual that we be required to thank judges for doing their duty; the reason is that over the recent past, we have become accustomed to the opposite. Spineless behavior has become the norm, broken only occasionally, as in the release order on Disha Ravi, or the Delhi HC's order to the Delhi police to register FIR's on the rioting in 2019 - the judge was transferred soon after, but he did his duty. The Madras HC's forthright observations on the dereliction of duty on the part of a pillar of democracy thus comes as a welcome surprise.

As to why the EC has behaved in this cowardly manner, endangering the lives of Indians in their lacs, we can only guess. Now all that remains is for the self-appointed guardians of the National Interest to declare these judges anti-national. We lesser mortals can be grateful that the judicial conscience remains alive in the Madras High Court. DS

The Madras High Court on Monday said that the Election Commission of India (ECI) is singularly responsible for spreading Covid-19 and murder charges should probably be imposed on it for its “irresponsible” behaviour. Criticising the ECI for not stopping political parties from violating the Covid protocols, the first bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy said, “You (ECI) are the only institution responsible for the situation that we are in today.”

“You have been singularly lacking any kind of exercise of authority. You have not taken measures against political parties holding rallies despite every order of this court saying ‘maintain Covid protocol, maintain Covid protocol’,” the court said, asking whether the poll watchdog “was on another planet when poll rallies were held”.

Chief Justice Banerjee and Justice Ramamoorthy were hearing a petition filed by the state transport minister M R Vijayabhaskar seeking directions to the ECI to follow certain measures during the counting of votes on May 2 at his Karur constituency, where a total of 77 candidates had contested.

Reminding the counsel of ECI that it is all about “survival and protection” now and that “everything else comes next”, the court further said that it would issue orders to stop counting if ECI fails to prepare a blueprint before May 2 on how Covid protocols will be maintained during the process. This needs to be done to ensure that “this state does not succumb to your idiosyncrasies any further,” the HC said.

It added, “Politics or no politics, whether the counting takes place in a staggered manner or deferred…At no cost, the counting of votes on May 2 result in being a catalyst to a further surge. Public health is of paramount importance and it is distressing that constitutional authorities have to be reminded in such regard…” The case will be heard next on April 30.


Bharat Bhushan: Chief Justice Bobde will not be missed

When Ranjan Gogoi demitted office as Chief Justice of India (CJI), many heaved a sigh of relief. Now the term of his successor Sharad Arvind Bobde has also ended. He too will not be missed. CJI Bobde carried on the unsavoury trend set by his predecessor of avoiding situations calling for a check on the Executive. One might well ask: What good is a judge who will not judge the powerful? And equally, what use is justice without compassion? CJI Bobde and the Supreme Court under his leadership fell short on both counts.

CJI Bobde shied away from hearing important constitutional questions before the Supreme Court. Under his tenure the dilution of the provisions of Article 370 and bifurcation of the erstwhile state of Jammu and Kashmir into two Union Territories, remained in cold storage. This undermined the faith of millions of Indians, especially Kashmiris, in the Supreme Court as protector and arbiter of the Constitution. The jamming of the judicial process further put democratic political processes in J&K on hold.

He also chose to ignore the challenge to the Constitutional validity of the 103rd Constitutional Amendment Act which introduces reservations for economically weaker sections (EWS). There are more than 20 petitions pending before the Supreme Court arguing that this amendment violates the basic features of the Constitution and the fundamental right to equality. They point out that the court has itself ruled in Indra Sawhney vs. Union of India that reservations cannot be based solely on economic criteria; that exclusion of SC/STs and OBCs from economic reservations would violate their fundamental right to equality; that the amendment would take reservations beyond the 50% limit set by the court and that imposing reservations on educational institutions that do not receive state funding violates the fundamental right to equality. By simply not holding hearings on the case, the court has allowed EWS reservations to continue.

Similarly, he put in cold storage legal challenges to the Aadhar Amendment Act and to a judicial review of Money Bills (controversial after the Lok Sabha Speaker classified a number of Bills as Money Bills--such as the Aadhar Bill, now Act – to prevent their rejection by the Rajya Sabha). Even more egregious was the interim order on electoral bonds by a bench headed by CJI Bobde. It allowed the continued sale of electoral bonds since this had continued “without impediment” in 2018, 2019 and 2020. In the interim order, the court put the onus of finding out who had made the donation to a political party on ordinary citizens who were enjoined to make “a little more effort to cull out such information from both sides (purchaser of the bond and political party) and do some ‘match the following’.” In sum, the court would not direct the parties to make the information public, a far easier solution by any reckoning than private citizens tallying the annual financial returns of a political party with the annual reports of thousands of companies who purchased the bonds.

CJI Bobde will be long remembered for his judicial insensitivity on the plight of migrant workers as the pandemic broke. On five occasions beginning March 31, the Supreme Court dismissed petitions to help migrant workers. The Supreme Court under CJI Bobde believed statements by the government that everything was under control and “fake news” was to be blamed for triggering the migration. “We will not supplant the wisdom of the government with our wisdom” he said. Shrugging off its responsibility the Supreme Court said “How can we stop people from walking?” On ensuring payment of wages to migrant workers in shelters, he insensitively observed “If they are being provided food, why do they need money?”

Only the progressive orders of various High Courts spurred the Supreme Court into action and finally declare, “This section of society needs succour and help of the concerned governments.” Despite this the court refused to enforce payment of lockdown wages that were mandatorily guaranteed by the government under the Disaster Management Act. Rather, it supported the government’s request compelling weak, jobless migrant workers to negotiate with their employers.

Despite brutal police action against students in Jamia and Aligarh Muslim Universities, CJI Bobde refused to hear petitions challenging the Citizenship Amendment Act till “the violence stops” refusing however to name the state as the perpetrator of violence in this case. Even on his last day in the court, he claimed that freedom of speech was the most abused right in India. This is in keeping with his earlier comments on the “misuse” of RTI Act creating a sense of “paralysis and fear”.

The Covid-19 pandemic cannot be cited as an excuse by the apex court to ignore crucial issues it was called upon to adjudicate. Eminent lawyer Dushyant Dave has pointed out however that in contrast corporate cases like Tata vs. Cyrus Mistry dispute received a quick hearing. CJI Bobde’s final gaffe was in appointing Vedanta’s lawyer Harish Salve as amicus curiae in a case of Covid management on his last day on the Bench. Just a day earlier Salve had appeared before him seeking permission to reopen Vedanta’s Sterlite Copper plant at Thoothukudi in Tamil Nadu, ostensibly to produce Oxygen for Covid patients. The plant was shut for violating environmental norms after 13 protestors were shot dead. Salve finally recused himself as amicus curiae citing his friendship with CJI Bobde since their school days and a possible conflict of interest.

On his departure, CJI Bobde regretted that no woman had yet held this position. But it is difficult to see how this “enlightened” observation squares with his questioning the presence of women in the farmers’ agitation, “Why are women and children being kept in the protest?” The comment betrays disbelief in women’s political agency. CJI Bobde was thin-skinned about criticism and summoned a senior counsel for contempt for commenting on a photo of his on a Harley Davidson motorcycle during the pandemic without a mask. For someone who could not protect the reputation of the Constitutional Court, it seems incongruous that he went to such absurd lengths to protect his personal image. However, as Indians see the back of this departing bus, no one knows what the next one will bring.


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Anil Nauriya - The Angst of August: Reading The Recent Political History of India // Express editorial: Prashant Bhushan judgement - the Supreme Court has diminished itself

Facing Contempt Case, Prashant Bhushan Says Sorry for Just One Remark; 'Why No Helmet by CJI?'

Confrontation in Supreme Court Of India bodes ill // Prashant Bhushan on the CJI’s ‘Extraordinary Interest’ in a Matter Directly Concerning Himself

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Neelabh Mishra - Modi Sarkar, beware of tampering with the Constitution / Soli Sorabjee:

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