Tensions between the executive and the judiciary are not new. However, the confrontation has never been as conspicuous as it is now. The Supreme Court is visibly divided — impeachment motion against the Chief Justice of India, political forces are desperately bidding to clip the wings of the judiciary, huge political pressure on the appointment of judges and so on.
The Supreme Court on August 8 last year reacted sharply after the Central government asked it to “restrain” from making adverse remarks against governance while dealing with pleas. Attorney General KK Venugopal, appearing for the Centre, told a bench headed by Justice Madan B Lokur that the court was passing orders in individual pleas without realising the financial impact. Venugopal said that while the cancellation of the 2G licences by the court virtually wiped out huge foreign investments, another order on removal of liquor vends on highways caused a financial loss and people lost livelihoods.
Hitting back, the Supreme Court said: “Let us make it clear that we have not and we are not criticising the government for everything. We are also citizens of this country. Do not give the impression that we are criticising the government and preventing it from working. We are only enforcing rights of people. We cannot wish away Article 21.” Justice Lokur emphasised that it was because of the court’s order that the government has collected over Rs 1,50,000 crore as environment funds for illegal mining. The court was hearing a plea on the inhuman conditions prevailing in 1,382 prisons across the country, which are overcrowded. The appointment of Justice KM Joseph too triggered a conflict.
Driven by its brute majority in Parliament, the BJP wants to change key institutions. After converting the Planning Commission to Niti Aayog, the Centre now wants to replace the University Grants Commission with Higher Education Commission of India. It wanted to tame the judiciary by replacing the present collegium system with National Judicial Appointment Commission (NJAC). The NJAC Act, passed by Parliament, received the presidential assent but was struck down by the Supreme Court.
Union Minister Ananth Kumar Hegde had openly stated that the BJP was here to change the Constitution. Echoing the same intent, former ABVP general secretary and rightwing intellectual Ram Bahadur Rai said: “There have been over 100 constitutional amendments; one every year, and we still cannot say there won’t be a need for more. This in itself is proof that the Constitution does not fulfil today’s needs.”
The Congress, particularly during the regime of Indira Gandhi, tried to change the Constitution. The Supreme Court, in its historic judgment of April 1973, in the now famously known Kesavananda Bharati case, upheld Parliament’s power to amend the Constitution but imposed fetters against amending its “basic structure”. This exposition of the “basic structure” principle has since then emerged as one of the most potent tools against the unbridled power of the executive.
Judiciary Vs Media
The Supreme Court has from time to time expressed its concerns on media trial and coverage of court proceedings. It also intended to draw guidelines on coverage of court proceedings. The relationship between media and judiciary needs to be carefully managed by both the institutions. While the media strives to provide access to information to the public, it needs to ensure that it does not trample upon the rights of various parties involved or unduly influence the judiciary.
In the past, contempt proceedings were initiated against many who publicly spoke about corruption in the higher judiciary. In 2001, a constitution bench of the Delhi high court found Madhu Trehan and her colleagues guilty for publishing the results of a survey amongst senior advocates on their perceptions of the judges of the high court. In the survey, certain judges ranked low on integrity. The high court frantically ordered the Delhi police to seize all copies of the magazine from newsstands.
Another infamous 2007 order of the Delhi HC convicted journalists from the Mid-Day for publishing a cartoon lampooning former CJI YK Sabharwal over allegations of corruption in the Delhi sealing cases. It took ten years for the Supreme Court to overturn that conviction.
In an unprecedented ruling that has effectively gagged the press; the Meghalaya HC restrained the media from publishing bandh calls. The court order was issued on May 27, 2015, the day the banned insurgency group, Hynniewtrep National Liberation Council, called a bandh to protest against the State government’s dilly-dallying over the Village Administration Bill. A similar ruling restraining the media from publishing bandh calls was passed by the Gauhati HC earlier.
The Supreme Court’s condemnation on Assam State Coordinator of NRC, Prateek Hajela, and Registrar General of India, Sailash, on statements made by them to the media without informing the court may be justified. The SC has reason to be enraged since the modalities for the claims and objections process are yet to be shown to the court. However, we will have to consider the immense pressure of the public on the NRC officials and the media for getting newsfeed before we blame the duo.
The Madrid Principles on the Relationship between the Media and Judicial Independence says: “Judges should receive guidance in dealing with the Press. Judges should be encouraged to assist the press by providing summaries of long or complex judgments of matters of public interest and by other appropriate measures”. There has been an obvious failure in effectively communicating with people and the media on the difficulties faced by the people due to the NRC. The gravity can be gauged by reports of incidents of suicide by people, when they did not find their names in the final draft NRC.
Fissures in the Media
Fissures in the fourth estate, like its third estate counterpart – the judiciary — are also clearly visible, thanks to the concentration of media ownership and polarisation of media on political lines. Media coverage of the proceedings of the SC on the PIL relating to inhuman condition in Indian prison is contradictory. The NDTV’s headline said: “Centre asks top court to “restrain” from criticising it. Court hits back” and the News 18 headline said: “Govt. hits back, asks Supreme Court judges to refrain from making comments”. The News 18 report’s emphasis was on Attorney General’s words and NDTV’s was on Justice Lokur’s and other judges. There are no factual distortions in both the reports but the presentation made the difference. This is all about the art of bringing negativity to the fore from a positive report.
It is difficult to maintain a balanced relation between the three pillars of democracy – judiciary, executive and media — in such a hostile environment. But good sense must prevail and all the stakeholders need to endeavour and strike a balance to ensure harmony in the polity.
(The author is a senior journalist from Assam)