‘Why Is The Bar Silent As Judicial Independence Comes Under Attack?’ Asks Senior Advocate Anand Grover

Grover was invited as a guest at a parliamentary briefing on Wednesday on the topic ‘Taking stock of constitutional rights protection in India’ ahead of the Indian Republic Day celebrated on January 26. This virtual event was organised by The London Story, a think-tank run by the Indian diaspora in the European Union. Also in attendance were Finnish Green League politician and member of the European Parliament, Alviina Alametsä and Advocates Prashant Bhushan and Shahrukh Alam.

Judiciary and judicial independence under attack

The core values of our Constitutional of justice, equality, liberty, and fraternity are all in crisis in this era which has been described by many as that of an ‘undeclared Emergency’, said Grover. This is not the first time that these values have come under attack, he added, referring to the 21-month-long nationwide Emergency that remained in effect from June 25, 1975, to March 21, 1977. “It is a very dangerous situation, and it is distinct from how things were 10 years ago,” Grover claimed.

The judiciary had succumbed during the Emergency as well, but the condition is more egregious today, Grover lamented, pointing out that the rise of a strong government has historically been accompanied by the increased vulnerability of the judiciary and judicial independence. “Now we are witnessing increasing politicisation of the judiciary, not just in India, but the world over,” the lawyer said, citing the US Supreme Court’s decision to overturn Roe v. Wade, ending five decades of federally protected abortion rights. “In India, we had a particularly bad period and this, ironically, came after the judges’ conference”, Grover alleged. In an unprecedented move, the four senior-most puisne judges of the Supreme Court, Justices Ranjan Gogoi, Jasti Chelameswar, Madan B. Lokur and Kurian Joseph, had, in January 2018, risen in revolt against the then-Chief Justice Dipak Misra, by holding a press conference, in which they highlighted a litany of problems afflicting the top court, including arbitrary decision-making and allocation of cases by Justice Misra in his administrative capacity. Apparently, in the period following the historic press conference, “cases have not been taken up, or not decided in accordance with the law”, and the situation has been made worse by the latest controversy surrounding judicial appointments. “We are undergoing a period of crisis,” Grover claimed, “But, fortunately, I would say the collegium has taken hold of the situation in the recent past…But there are many structural problems that remain.”

Public interest litigations used to settle political scores

On judicial activism, Grover said, “Public interest litigation was an instrument devised by the Supreme Court to help poor people who did not have access to justice. However, over a period of time, it has become a political instrument. Although it is still used to change the political power relationships, largely, it has become a tool in the hands of political parties to settle scores.” Apart from this, very few PIL judgements were well-reasoned, Grover claimed. Therefore, he explained, public interest litigation was not a judicial device that “should be praised without criticism”.

Violence and systematic discrimination targeting religious minorities

While speaking about the state of rule of law, Grover expressed deep concern over the systematic targeting, violence, and discrimination faced by religious minorities in the country. He explained, “Lynching of Muslims has become a major issue, with police complicity and no accountability. There has been such undermining of plurality and religious freedoms that minorities feel like second-class citizens in their own country.” In this connection, he highlighted the treatment meted out to Muslims who protested against the controversial Citizenship (Amendment) Act by the state and its instrumentalities, in particular the brutality and violence with which police departments responded to the countrywide protests. “Look at how the protesters were dealt with by the police. The victims, in fact, have become accused and lodged in jail. And the vast majority of them are Muslims.”

Free press and right to speech and expression in jeopardy

Another aspect on which Grover focused was the repression of free media and censorship in India under the Bharatiya Janata Party-led government. “There is a direct attack on journalists and the freedom of speech. The media is being largely controlled by the government.” Soon, the independence of the media might be a thing of the past, Grover announced grimly. He mentioned Gauri Lankesh, an outspoken critic of the rise of Hindu extremism, who was shot dead outside her Bengaluru residence, and Kerala journalist Siddiqui Kappan, who was arrested while on his way to cover the Hathras gangrape case and kept in jail for two years before finally being released on bail in 2022.

Responsibility of the legal fraternity to ensure judicial independence

“The civil society is under attack and a large number of civil society organisations have been closed down. Other statutory and constitutional authorities have lost their independence,” Grover declared. In order for the superior courts to discharge their responsibility as the custodians of the Constitution, they must be independent. Issuing an urgent call to action, Grover said, “We live on hope, but not only on hope. As the legal fraternity, we have to be watchdogs. Otherwise, we cannot hope that the judiciary will be independent.”