Issues Former Judge Rohinton F. Nariman Finds Deeply Troubling

Newsreel Asia Insight #75
Dec. 17, 2023

In a recent address, Justice Rohinton F. Nariman, a former judge of the Supreme Court, shared four significant concerns regarding the current state of affairs in India, particularly in relation to the Supreme Court and the government.

His speech, given at the Smt Bansari Sheth Endowment Lecture titled “Constitution: Check And Balances,” focused on the government’s response to a BBC documentary, the Election Commission Bill, Kerala governor’s handling of legislative bills and the Supreme Court's judgment on Article 370, a reported by LiveLaw.

“Firstly, in the beginning of the year, there was this BBC documentary, which was speaking about our present Prime Minister and former Chief Minister of Gujarat, which was promptly banned. And after the ban, the BBC was harassed by having the tax raids upon it,” Justice Nariman said.

He emphasised the importance of the courts in protecting media rights, stating that if the media, which he referred to as “our watchdog,” is suppressed, then nothing remains. He reminded the audience of India’s low ranking on the Press Freedom Index, where it stands at 161 out of 180 countries, underscoring the ongoing attacks on media freedom and democracy.

Secondly, Justice Nariman criticized the Election Commission Bill, which was passed by the Rajya Sabha. He expressed concern over the bill’s provision to replace the Chief Justice of India (CJI) with a selected cabinet minister in the committee responsible for selecting the Chief Election Commissioner (CEC) and other Election Commissioners.

“… 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,” Justice Nariman said.

In an editorial, Deccan Herald wrote that the government’s claim that this bill follows Supreme Court directives is only partially true and contradicts the court’s intent. Previously, there was no defined procedure for appointing the CEC, a gap potentially exploited by past governments, it said.

In March, the Supreme Court proposed a selection process involving the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the CJI, aiming to bolster confidence in the appointments and the Election Commission’s credibility. However, the government’s bill excludes the CJI from this process, forming a committee of the Prime Minister, a Union cabinet minister, and the leader of the largest opposition party in the Lok Sabha, the editorial said.

Additionally, the bill grants legal immunity to the CEC and Election Commissioners, protecting them from court actions for any misconduct, it pointed out, and cited critics as arguing that the Opposition’s role in the committee is merely symbolic, allowing the government to control appointments and potentially compromise the Election Commission’s independence.

The third issue raised by Justice Nariman was the conduct of the Kerala governor in handling legislative bills.

He pointed out that the governor sat on bills for extended periods, up to 23 months, and then referred most of them to the President, effectively bringing legislative activity in the state to a halt. He expressed hope that the Supreme Court would eventually favour only independent individuals for such roles, criticising the current trend of appointing people who do not act independently.

Finally, Justice Nariman discussed the Supreme Court’s judgment on Article 370, which concerns the special status of Jammu and Kashmir.

He criticised the judgment for its impact on federalism and for bypassing a crucial constitutional clause. He noted that the bifurcation of the state during the president’s rule was a clever way to avoid the limitation set by Article 356, which states that such a rule cannot exceed one year unless there is a national emergency or the Election Commission declares elections impossible.

He also criticised the Supreme Court for not addressing this key issue in its decision, based on a mere assurance from the Solicitor General that statehood would be restored, an assurance he deemed non-binding for future governments.