Minority rights on the altar of judicial-executive friction in India – TwoCircles.net

It is high time for the court to render a decision in this regard as well so that confidence in state institutions is not lost.

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In India, the judiciary must verify that each authority of the law is doing its duty in accordance with the rule of law. It is also the responsibility of the judiciary to ensure that judges who hear sensitive cases and criticize government agencies are not transferred so arbitrarily.

Aasif Mujtaba | TwoCircles.net

February 2020 was one of the darkest chapters in the history of community riots in India’s national capital. After the 1984 anti-Sikh pogrom, violence against Muslims in February 2020 continued unabated for more than a week. A total of 53 people, mostly Muslims, lost their lives and properties worth millions of dollars were destroyed. The way Muslims, who were protesting against the Citizenship Amendment Act (CAA), were targeted is a strong case of the anti-Muslim pogrom which took place not only with the connivance of the state, but also with its active sponsorship. The public order situation in the capital was paralyzed and Muslims were ruthlessly murdered in the streets. Over 750 FIRs have been filed and the hearing of these cases was mainly taking place in the Karkardooma court in Delhi.

For more than a year now, the Delhi police had been the target of the justice system, which had made critical remarks against the conduct of the force. Recently, in a surprising move, Extra Sessions Judge Vinod Yadav was transferred from Karkardooma Court in northeast Delhi to Rose Avenue Court as a special IWC judge. ASJ Yadav, who was hearing several riot cases in Delhi, was transferred along with 10 other judicial officers, including Metropolitan Magistrate Fahad Uddin.

ASJ Yadav’s position on Delhi police investigation into Delhi riots
There are several instances where ASJ Yadav’s remarks criticized the conduct of the Delhi police. In the State against Mohammad Nasir In that case, he imposed a fine of Rs 25,000 on Delhi police who challenged the court’s order to file an FIR in a case where the plaintiff lost one of his eyes. The court also noted that the police officers had failed miserably in their legal obligations. In the State against Ashraf Ali and others In this case, his court ruled heavily on the Delhi police, saying that not only is the level of investigation very poor, but that the police are filling out half-baked charge sheets in several cases. He pointed out that the police do not care to bring these cases to a logical end. In the State against Shah Alam and others case, the court not only acquitted the three defendants Shah Alam, Rashid Saifi and Shadab, but also made a damning remark to the Delhi police as to when the story will return to the worst community riots since the partition of Delhi, the failure of the investigative agency to conduct a proper investigation using the latest scientific methods will surely torment the sentinels of democracy. Even a day before his transfer, ASJ Yadav in State vs. Dinesh case, pointed out that police witnesses lie under oath and that the police situation is indeed pathetic.

Without a doubt, ASJ Yadav was becoming a nightmare for the Delhi police and repeatedly criticized the poor and biased level of investigation in most cases. His transfer at this time raises natural suspicions.

The curious case of Judge Muralidhar
Likewise, Judge S Muralidhar was transferred last year after a bench composed of him and Judge Talwant Singh spoke out harshly against Delhi police for failing to register FIRs against BJP leaders. Kapil Mishra, Anurag Thakur, Parvesh Verma and others for giving inflammatory speeches which led to the riots in Delhi.

Judge Muralidhar even had an emergency session at 1 a.m. at his residence amid the peak of community violence and asked Delhi Police to ensure the safe transit of around 20 patients from the Al-Hind hospital to GTB hospital for better treatment. The timing of this notification and its unceremonious dismissal amid the hearing of an extremely sensitive case that resulted in the deaths of several innocent citizens has been criticized as disturbing and in bad faith. What reinforced the grounds for suspicion was that although the same college recommended the transfer of another judge on the same day, Judge Subramonium Prasad, his transfer notice was not issued with the same eagerness. .

The dispute
“Governments without separation of powers commit the worst crimes”, – James Cook

The apparent example of the executive usurping the powers of the judiciary and disrupting its functioning must be seen in light of the plans for the separation of powers by the Indian Constitution.

One of the main features of the Constitution of India is that it not only separates the power between various organs of the state, namely the legislature, the judiciary and the executive, but also limits the arbitrariness with which any organ can behave. This is also called the practice of control and balance. But even then the compartment separating powers is not tight and there are many instances where one organ of state encroaches on the power of the other. After the famous Keshwanand Bharti judgment of 1973, the manner in which a Supreme Court judge, Justice Ajit Nath Ray was elevated to the post of chief justice leaving behind three of his elders (Judge JM Shelat, Judge AN Grover and Judge KS Hegde) or in 1977 when Judge Khanna was replaced by another Chief Judge after his dissent in ADM Jabalpur v Shiv Kant Shukla case are clear examples of legislative attacks on the judiciary.

In general, a strong executive (with a single majority party) at the center always creates a weak judiciary. There have been several instances in the past where an absolute majority government has attempted to take over the judiciary, thereby infringing on their powers as defined by the Constitution.

Go forward
“A justice system is corrupted if the truth is denied the right to be a witness”, – Suzy Kassem

It is important for the judiciary to verify that each judicial authority is doing its duty in accordance with the law. It is also the responsibility of the judiciary to ensure that judges who hear sensitive cases and criticize government agencies are not transferred so arbitrarily. Like the landmark Keshvanad Bharti judgment of 1973 where the constitutional amendment powers of the legislature were limited or the Advocate on Record case of 1993 where the Supreme Court ended the arbitrary appointment of judges by the executive, it is high time for the court to rule on this as well so that confidence in state institutions is not lost.

Aasif Mujtaba is a researcher at IIT Delhi and a freelance journalist based in New Delhi. He tweets to @MujtabaAasif.


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