The silence of the government on the memorandum of procedures finalised by the Supreme Court and the alleged arbitrary assignment of cases is at the core of the controversy dogging the judiciary. By VENKITESH RAMAKRISHNAN

“We have tried our best, now we are placing it before the nation. This is integral to the survival of our democracy.” These words, uttered by Justice J. Chelameswar during the “extraordinary” press conference held in New Delhi on January 12 by him and three other senior judges of the Supreme Court, underscored the political dimensions of the unprecedented development in the Indian judiciary. Indeed, the debate that followed the judges’ engagement with the public has focussed primarily on the implications it has specifically on the institution of the Supreme Court and the judiciary as a whole. But their invocation of as powerful a phrase as “integral to survival of our democracy” has deep political significance. A closer look at the institutional factors that impelled the judges to this unusual public appearance and the larger political context in which this has unravelled points towards multifarious political dimensions. These range from fundamental questions relating to India’s democratic polity, at both systemic and practical levels, to a number of realpolitik machinations and manoeuvres, in which top political leaders, including Amit Shah, the president of the Bharatiya Janata Party ( BJP), the ruling party at the Centre, are apparently involved.

Sohrabuddin encounter case

Of course, the judges did not go into the details of any political issue but their reference to the case regarding the mystery surrounding the death of the Special Judge in the Central Bureau of Investigation (CBI) court, Brijgopal Harkishan Loya, in December 2014, had a linkage to allegations against Amit Shah. It was Justice Ranjan Gogoi, who will succeed the present Chief Justice of India (CJI) Dipak Mishra in October, who made it clear that “difference of opinion regarding the assignment of Judge Loya’s case was one instance of difference with the Chief Justice” which forced them to come out in the open. Judge Loya was hearing the Sohrabuddin encounter case in which Amit Shah, who was the then Gujarat Home Minister, was the prime accused. Members of Judge Loya’s family, including his father, raised doubts about the circumstances leading to his death on December 1, 2014. The questions raised by the family evoked apprehensions and even accusations that Judge Loya’s sudden and seemingly unnatural death could be related to the series of killings, including encounter killings, that had happened in Gujarat when Amit Shah was the State’s Home Minister and Narendra Modi Chief Minister of Gujarat.

One of the killings was that of Sohrabuddin Anwarhussain Sheikh and his associate Tulsiram Prajapati, both of whom had criminal records as gangsters and extortionists, in November 2005. The two were killed in a staged extra-judicial encounter, allegedly at the behest of Amit Shah. The allegations against Amit Shah were part of the investigation records of the case as well as the judicial proceedings. These records had pointed to yet another political killing and stated that both Sohrabuddin and Tulsiram may have been “used to kill Haren Pandya”, a BJP leader who was once close to Modi and who had reportedly become a major challenger to the Chief Minister following the anti-Muslim pogrom that rocked the State in 2002. Pandya had stated that Modi had a direct role in engineering the genocide and even quit his ministerial position in the Modi government. He was killed in March 2003 when he was returning from a morning walk. Both his wife, Jagruti Pandya, and father, Vithalbhai Pandya, had consistently maintained that Haren Pandya’s death was a political murder.

The case records on the encounter killings of Sohrabuddin and Tulsiram had also pointed out that while both of them had been employed to kill Haren Pandya, the alleged conspirators behind the killing had begun to lose confidence in the criminal duo by early 2004. It went on to add that the equations between the conspirators and the duo had worsened systematically in the course of a few months. There were also suggestions that the defeat of the BJP-led National Democratic Alliance (NDA) in the 2004 Lok Sabha elections impelled the alleged conspirators to eliminate Sohrabuddin and Tulsiram in fake encounters because they believed that pressure from central investigating agencies could force them to reveal damaging information on Pandya’s murder. Sohrabuddin’s wife and her companion also died in mysterious circumstances.

References to the series of killings as well as the death of Judge Loya figured in political circles following the Supreme Court judges’ press conference. A key factor in the discussions was the allegation against Amit Shah and Modi. Talking to Frontline, a senior activist of the Rashtriya Swayamsewak Sangh (RSS) based in Ahmedabad said the unprecedented press conference had brought about an unexpected twist in the criminal cases against Amit Shah.

“The Sangh Parivar was under the impression that Amit Shah would not face any further trouble from the judiciary because Judge Loya’s successor in the CBI court had exonerated him though the case had not been closed. Now, there are obvious complications not only because doubts over Judge Loya’s death are getting articulated in a widespread manner, but also because the relatively junior judge, who was assigned the case has requested the Chief Justice to let another judge handle the case. Evidently, the ‘junior judge’ too has been affected by the negative judicial and political perceptions that have come up around the case following the press conference. This also means that any further proceedings on the case would get greater media and public attention.”

According to some Sangh Parivar activists, including BJP supporters hailing from Uttar Pradesh, Bihar, Haryana and Gujarat, allegations about the promotion of criminality in politics by the party’s top leadership has got wider circulation on account of other developments that have come up in the present context. Their reference was to the developments around the Viswa Hindu Parishad (VHP) international president, Pravin Togadia, who went briefly missing on January 15 and later resurfaced and stated tearfully at a press conference that the BJP governments in Gujarat and Rajasthan were harassing him by reviving decade-old cases. He also added that there was information from some friends that Rajasthan and Gujarat police teams had been deployed to eliminate him in an encounter.

Togadia’s contention was that “some people whose names he would reveal at the right time” were trying to stifle his voice championing issues such as Ram temple, farmers’ distress, resettlement of Kashmiri Hindus and cow protection. He said that the behaviour of Rajasthan Chief Minister Vasundhara Raje and Gujarat Home Minister Gulabchand Kataria, when he called them to find out about the so-called police action, only added to his suspicions about the operation and that was why he went into hiding.

Reactions from within the Sangh Parivar make it clear that all this has brought into focus the criminality that has time and again dominated the politics of the Sangh Parivar, including at the highest levels of the leadership. There are even suggestions from sections of the VHP that this record would have new manifestations in the run-up to the general election. This stream of opinion argues that the VHP had been used repeatedly to advance extreme Hindutva politics whenever the RSS and the BJP leadership wanted to create an intensely communally polarised socio-political situation but has also been systematically sidelined after achieving the political gains from it. A group of VHP activists from western Uttar Pradesh pointed out that someone as respected by them as Ashok Singhal, the late VHP president, went through this ignominious process after the hugely successful Ayodhya Ram mandir agitation in the 1980s and 1990s.

“The BJP made rapid political gains on account of the mandir agitation but when the party enjoyed unstinted power for six years after 1998, VHP leaders and activists were steadfastly denied its fruits. Singhal and other leaders were victims of pointed indifference. There was no redress despite appealing to top leaders of the RSS and the BJP, including then Prime Minister Atal Bihari Vajpayee,” members of the VHP said. Some of them were of the view that Togadia’s references to an “eliminating assault” targeted at him could well be seen in this background. “There is little doubt that the BJP would be forced to take up the Ayodhya Ram mandir project by embarking on the construction of the temple before the next Lok Sabha elections. Naturally, Togadia and other VHP leaders would have a big and leading role in this, because the mandir project is essentially that of the VHP. It is possible that sections of the Sangh Parivar, including in the RSS and the BJP, do not want to accord this leading role to the VHP leadership. The fears expressed by Togadia at the January 16 press conference could have some relation to this background,” a VHP member from western Uttar Pradesh said.

Clearly, as the Ahmedabad-based senior RSS activist pointed out, criminality issues in the BJP and the Sangh Parivar are bound to get more and more attention in the days to come. However, he was also of the view that despite the negative perceptions this attention could create, including in sections of the Sangh Parivar, the RSS leadership did not expect any substantial political fallout essentially because the opposition parties, including the Congress, the regional forces and the Left parties, have been consistently found wanting in exploiting these issues to mount any real political challenge to the BJP. Thus, the understanding is that realpolitik issues that have come up in the context of the historic press conference could garner greater space in the perception battles but would not move beyond that to concrete and tangible political results.

Even while these internal issues came up within the Sangh Parivar, the RSS launched covert and overt attacks against the four judges, questioning even their right to a public engagement through a press conference. It sought to defend Chief Justice Misra by arguing that his background and track record were exemplary and driven by a commitment to national interests. It highlighted his refusal to change the capital punishment given to Yakub Memon, an accused in the 1993 Mumbai bomb blasts case, as also the death penalty to those accused in the Nirbhaya rape case. Further, it pointed out that he had ordered the constitution of a special investigation team (SIT) to reopen the 1984 anti-Sikh riot cases and also that he had reprimanded the Congress leader and advocate Kapil Sibal recently for seeking postponement of the judgment in the Ram Janmabhoomi case to a date after July 2019. Responses from other political players have been, by and large, muted except for some voices from the Left parties, including Sitaram Yechury, the general secretary of the Communist Party of India (Marxist), who has suggested initiating impeachment proceedings against the CJI. On its part, the principal opposition party, the Congress, has soft-pedalled its response by focussing essentially on the larger systemic issues relating to the controversy.

The two significant systemic issues raised by the four judges related to the silence of the government on the memorandum of procedures that was finalised by the Supreme Court and the arbitrary assignment of cases in the Supreme Court in a selective manner without any rational basis. Although not stated explicitly, this arbitrary assignment of cases also pointed to a sort of pressure that sections of the executive were enforcing, albeit indirectly, on sections of the judiciary. Evidently, these are core political issues associated with the controversy in the apex court but have extensive ramifications for the judiciary as a whole, especially in relation to its equations with the executive. As in the case of the realpolitik dimensions, there are no clear signs that the larger systemic questions on the relationship between the country’s democratic polity and the judiciary raised by the judges will evoke a concrete and substantive response at the moment.