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Mainstream, VOL 62 No 2 January 13, 2024

Does Bilkis Bano verdict constitute an exception to the rule of capture of institutions | Faraz Ahmad

Friday 12 January 2024, by Faraz Ahmad


Justice B.V. Nagarathna truly deserves to be called in our difficult times a “Danial” a la Portia of Shakespeare’s Merchant of Venice.

After full 21 years Bilkis Bano, then barely 21 and pregnant with her second child, finally received a consolation for the retribution awarded to her tormentors, rapists and murderers who publicly stripped her, her mother and sister, raped them all, brutally killed her three-year-old daughter by banging the child’s head against a stone, her mother and sister and other men and women of her family in full view Bilkis while she was being assaulted. Can one imagine anything more gory and revolting in modern times? Yet the 11 accused who after years of escaping retribution, thanks to the flagrant violation of maintenance of law and order by the Gujarat government, said Justice Nagarathna, were finally ordered to be sent back to prison to serve full term of their conviction from a CBI court of Mumbai.

This judgment of the Supreme Court of India is all the more inspiring and encouraging, coming after at least two recent judgments delivered by none other than Chief Justice of India, Justice D.Y. Chandrachud, turning a blind eye to Centre’s arbitrary, step motherly treatment of Jammu and Kashmir in the garb of striking down Article 370 and 35A of the Constitution of India; and giving a long rope to the deliberate resistance and delay tactics of the Securities and Exchange Board of India (SEBI) to avoid probing the Hindenberg allegations of scams by the Adani group, were the subject of much animated discussion throughout last year, causing considerable despondency among those looking at the apex court as the final arbiter to safeguard constitutional values and the rule of law.

Who is more qualified than the former Delhi High Court Justice Rekha Sharma to comment on the conduct of the Supreme Court and how Justice Nagarathna has saved the highest court from further embarrassment. She wrote in an article published in a daily on January 10, “The judgment has come at a time when it is most needed. Discontent is brewing among people over how some cases are prioritised over others. How is it that a citizen like Umar Khalid is languishing in jail for over two years awaiting the hearing of his bail application? If a special bench can be constituted, and made to sit on a Saturday in the matter of G N Saibaba, who is suffering from multiple diseases and is wheelchair-bound, to hear the State’s appeal against his discharge by the Bombay High Court, why can’t such steps be taken in the matters of other accused crying for justice? The memory of Stan Swamy’s death in prison, without receiving a hearing on his bail application, is still fresh in our minds. The Constitution has created an independent, fearless judiciary. It is time that it proves equal to the challenges, and no one feels left out or discriminated at the hands of the judiciary.

“Against this background, the Supreme Court’s judgment… will go a long way in restoring the confidence of the people in the judiciary as a whole and the apex court in particular.”

The apparent hesitation of the apex court to intervene in time to uphold ordinary constitutional citizen’s rights has encouraged the current system under the present regime to thumb its nose at critics. For instance, the Maharashtra Assembly Speaker Rahul Narvekar, a fist time BJP MLA, finally gave his verdict after much cajoling and coaxing by the Supreme Court on Shiv Sena (UBT) petition seeking disqualification of Eknath Shinde faction of Shiv Sena, rejecting the petition of Udhav Thackeray, leaving virtually little time to appeal against this order in the Supreme Court.

On May 23, 2023 the Supreme Court gave its verdict on the UBT petition sating that “This Court held that judicial review is not available at a stage prior to the decision of the Speaker or Chairman, save in certain exceptional circumstances detailed in that case. The exclusive power to decide the question of disqualification under the Tenth Schedule vests with the Speaker or Chairman of the House.”

The crisis leading to Eknath Shinde who broke away from the Shiv sena led by Udhav Thackeray commenced in mid-2022, nearly two years ago. First it took the Supreme Court exactly a year to give its verdict on UBT petition against the then Maharashtra Governor Bhagat Singh Koshiyari and seeking the disqualification of the rebel Sena MLAs.

The Supreme Court while upholding UBT grievance against the Governor, after he had demitted office, however directed Speaker Narvekar to decide on Udhav’s plea on disqualification of Shinde and his rebel team, while Navrekar appeared in no mood to budge immediately. He did but full eight months later.

Udhav is now free to go back to the Supreme Court challenging Maharashtra Speaker’s ruling. But with hardly any time left for this assembly to complete its term, even if the Supreme Court admits such a petition, its verdict may become infructuous by the time it comes, as it happened in the S.R. Bommai case. Perhaps that’s why this first time BJP MLA acted in a cavalier fashion.

Girish Kuber wrote in the Indian Express:” It may be no exaggeration to say that the Speaker of the Maharashtra Legislative Assembly has made a mockery of the Constitution with his decision on the Shiv Sena split.” Also raising a finger on the Supreme Court delay facilitating this mockery of the Constitution, he wrote, “To say that the Speaker’s decision is bound to trigger yet another legal battle would be no-brainer. It’s also not as if the Speaker is not aware of what lies ahead. Perhaps they have more faith in legal delays and what follows them. It was the delay that offered elbow room for political manoeuvring and that set a new precedent in political battles..What Shiv Sena experienced was the taking away of a party from its leader, lock, stock and barrel. And it is not going to be for the last time,” The Loksatta Editor forewarned.

As for Rahul Narvekar’s claimed generosity in not disqualifying the remaining 14 Shiv Sena MLAs still with Udhav Thackeray, according to insiders this was also part of a well thought out strategy of the BJP realising that the Shiv Sainiks are an emotional lot, personally attached to Bal Thackeray Parivar and such a move could boomerang and the BJP may not be able to weather the storm.

The crux of the matter is that constitutional institutions are slowly losing their esteem in public eye. There is a huge outcry against the Electronic Voting Machine (EVM) also raised by INDIA bloc. The Election Commission solely under the thumb of Modi regime for he and one of his ministers, will comprise the majority to decide on the appointment of an Election Commissioner against the opinion of the Leader of Opposition or of the Single largest party in the Lok Sabha. It is becoming increasingly difficult for the Election Commission in this situation to appear credible.

The EC without so much as granting a hearing to the INDIA bloc delegation on EVM trustworthiness, made a statement reiterating EVM’s credibility.

The status quoists dismissed the critics’ suspicion citing the BJP defeat in Himachal Pradesh, Karnataka, Telangana and latest in the Rajasthan by election.

But as a popular TV analyst read out the recent data, showing how the BJP government allows the Opposition small victories to ensure big wins and silence those questioning the EVM credibility. If that be the case, the results of the 2024 general elections due this May are a foregone conclusion in favour of the BJP bringing Modi back for a third term.

But it won’t be on account of the BJP manufactured enthusiasm for the consecration of Ram Mandir by Prime Minister Narendra Modi on January 22. Nor for all the much publicised free 5 kilo rations. It will be by keeping the VVPAT slip away from the voter’s discerning eye.

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