Justice Rohinton F Nariman, former Supreme Court judge, in a hard-hitting speech, said that disturbing events have been taking place in the country.
“What has happened in the recent past in this country is most disturbing. And I may share with you four things that have happened this year itself,” Justice Nariman said while delivering the Smt Bansari Sheth Endowment Lecture on ‘Constitution: Check And Balances’.
First disturbing fact : Ban on BBC documentary and tax raids
“Firstly, in the beginning of the year, there was this BBC documentary, which was speaking about our present Prime Minister and former Chief Minster of Gujarat, which was promptly banned. And after the ban, the BBC was harassed by having the tax raids upon it.”
Courts must act against onslaught on media
Justice Nariman said that the Courts must be swift in acting against onslaughts on media. The moment there is any onslaught on the media, the Courts must be vigilant to instantly stop it.
“The moment there is any onslaught on the media, the Courts must be vigilant to instantly scotch it. If you find that there is some independent reporting which has led to something as a result of which there is a tax raid then for that reason alone you must say that the tax raid is illegal and unconstitutional. That is the only way you can protect the media and this country. Otherwise, you are finished. It is the watchdog. It is our watchdog and if our watchdog is killed then there is nothing that remains”
Second disturbing fact : Election Commission Bill
Next, he spoke about the bill introduced by the Centre in the Parliament on the appointment of Election Commissioners, after the Supreme Court ordered that the CEC and the ECs should be selected by a panel comprising PM, Chief Justice of India and the Leader of Opposition, until the Parliament enacted a law. “Most unfortunately”, he said, a bill was moved to substitute the CJI by a Minister nominated by the PM.
“This is the second disturbing feature, because, if you are going to get the Chief Election Commissioner and other Election Commissioners appointed in this fashion, free and fair elections are going to become a chimera.”
He said that the Bill, if passed, should be struck down by the Court.
“According to me, it should be struck down on the asking as an arbitrary piece of legislation because it severely imperils the independence of the working of the Election Commission.”
Third disturbing fact : Kerala Governor sitting on bill
“The third disturbing fact that we found this year, is a Governor of a traditionally minority government State, Kerala, sitting over bills for periods of up to 23 months. When the Supreme Court rapped him on his knuckles, what did he do? There were 8 such bills. One bill was assented to, 7 were referred to the President. This again is a very disturbing feature.
If there is a wholesale reference to the President, then the legislative activity of the State comes to a standstill. Unlike our Governor sending back a bill, once it lands at the Centre’s door and Centre says no, that’s the death of the bill. This was the third most disturbing fact of this year.”
Justice Nariman said that independent-minded persons should be appointed as Governors.
“I am waiting for the day when the Supreme Court will lay down that ‘look, it is only independent functionaries who are supposed to fill these great offices. Not the kind of people that we find today, like in Kerala, where wholesale, after you slept over the bills, you just give them back to the President.”
Fourth disturbing fact: Impact of Article 370 judgment on federalism
“And the fourth and its impact – a tremendous impact on federalism – which was the recent Supreme Court judgment on the abrogation of Article 370″, he said.
Justice Nariman said the first question which had to be answered in the case was why the State was bifurcated when there was a President’s rule imposed in the State. He said that the State was converted into a Union Territory to bypass the clause in Article 356 which prescribe that President’s rule cannot exceed one year unless there is a national emergency or the Election Commission says that elections are not possible to be held.
“So how do you bypass it? You bypass it by this ingenious method of making the State Union Territories, where you have direct Central control and no problem as to time”, he said.
Justice Nariman criticised the Supreme Court for not deciding this issue simply based on an undertaking given by the Solicitor General that the statehood will be restored. In this context, he recalled that in the Shreya Singhal case (in which he was a judge), the Supreme Court decided the validity of Section 66A of the IT Act despite the Solicitor General assuring that it wouldn’t be invoked. Because governments may come and go and the Solicitor’s assurance may not bind a future government.
“The Solicitor General does not have any authority to bind the successor government. We are going to have a successor government from May next year. Second, and more importantly, he (Solicitor General) has no authority to bind the legislature. And this is going to be a legislative act,” he said.
Justice Nariman added that by not deciding the issue, the Court effectively decided the issue in favour of the Government.
“So, it say ‘we won’t decide’ means, in effect, you have decided. You have allowed this unconstitutional act to go forward for an indefinite period of time and you have skirted Article 356 (5),” he said.
The video of the lecture can be watched here.
