New Delhi: The judiciary cannot remain “in hibernation when the people of this country are under deep depression, are living every moment under the fear and threat of death, where a sense is prevailing that certain privileged persons are getting every protection but the larger section is helpless”.
Former Allahabad High Court Chief Justice Justice Govind Mathur, who retired on 13 April, has defended judicial interventions amid the Covid-19 pandemic, telling ThePrint in an interview that “constitutional courts very much understand their authority and jurisdiction”.
“The courts interfere in policy or administrative matters only on being satisfied that such policy or administration is causing serious injury to precious rights of citizens or of any person,” the judge said.
Justice Mathur, who started his judicial career in 2004 and built an image as a “defender of civil liberties” and core constitutional values, tackled several key cases during his tenure in the Allahabad High Court.
He questioned multiple decisions taken by the Yogi Adityanath government in Uttar Pradesh, and quashed the National Security Act (NSA) charges invoked against Dr Kafeel Khan for a December 2019 speech against the Citizenship Amendment Act (CAA). Another notable judgment saw him pull up the state government for the “name-and-shame” posters put up against people accused of damaging public property during the anti-CAA protests.
In the interview, Mathur expressed regret over the executive “still acting like colonial rulers”, and ignoring court judgments and orders on the sedition law. “It is a well-accepted fact that criticism of the government is not seditious in law,” he said.
Justice Mathur was critical of the judiciary as well, and said it is not adequately vigilant about constitutional values and rights of Indian citizens when it comes to considering bail for those arrested for sedition or under laws such as the Unlawful Activities Prevention Act (UAPA) and the NSA.
He rued what he described as Indians’ lack of understanding about the concept of democracy, and said some members of the judiciary aren’t adequately versed with the philosophy underlying the Constitution.
The collegium system for appointment of judges is the “worst system”, he added, and said it should be done away with. He also disapproved of post-retirement engagements for judges in quasi-judicial bodies.
‘An old song’
As the devastating second wave of Covid took hold of India, many high courts stepped in and issued directions to state/UT governments as well as the central administration on managing the situation. However, some have raised questions about the spate of orders. Asked about the criticism, Justice Mathur was dismissive.
“This is an old song sung again and again by a section either to save the wrongs of executive or on failing to understand the kinetics of developing law in our country,” the judge said.
“These are the right circumstances where the courts must come forward to assist the state, to extend a helping hand to all the affected persons,” he added.
The administration’s “ill-management”, he said, is “certainly responsible for the deaths” and “causing serious hurt to the lift of citizens”.
On the Supreme Court’s remark this month that the “doctrine of impossibility” — a contract law concept that refers to situations where it is impossible for a party to perform its obligations under a contract — applied to high courts, Justice Mathur said it was a settled principle. Courts mostly do not pass unimplementable orders, he added.
The SC made this observation while staying a 17 May order of the Allahabad High Court, where it suggested several measures for the development of medical infrastructure in the state and observed that the entire healthcare system in villages and small cities of UP is “Ram bharose (in God’s hands)”.
“I have read this HC order. It would have been better if the SC would have discussed the direction that in its opinion was non-executable,” he said in defence of the high court order.
Collegium system ‘worst’
Justice Mathur took a dim view of the rampant use of the sedition law to deal with voices against the government. “It is really sad that our executive is not accepting the law laid down by the Supreme Court.”
He said it is a well-settled proposition that it is not seditious to have views different from the government’s.
“This was held much back in 1962 and then developed in several other cases. But the executive does not want to accept this. Any voice of dissent, according to them, is sedition,” he said.
He called for making Section 124A of the Indian Penal Code, dealing with sedition, a non-cognizable offence (bailable, and where accused can’t be arrested without a court warrant and police cannot start investigation without court permission), as it was prior to 1973.
“One important aspect is that we have not accepted our constitutional and democratic values. Our understanding of democracy is only for counting heads to have a ruler and (we) don’t accept that it is a way of life. You can’t be a democrat only to elect a ruler and a dictator or feudal for all other events including governance,” he said.
Justice Mathur emphasised that preventive detentions — for example, under the NSA — must be invoked in rarest-of-rare cases and not where the matter can otherwise be dealt with under the general law.
He even urged the judiciary to become more vigilant about the constitutional values and rights of Indian citizens in matters where dissent is sought to be stifled.
“We are not sufficiently equipped with the philosophy on which our Constitution is founded. Lack of this knowledge amongst members of judiciary is certainly causing injury to our justice delivery system,” he said.
The collegium system to appoint judges, Justice Mathur added, is causing hurt to the self-esteem of legal practitioners and is developing sycophancy among advocates and judicial officers. “We must have a better system,” he said.
He added that post-retirement engagements for judges in quasi-judicial bodies defeats the purpose of these tribunals being expert adjudicating fora. “These bodies have become akin to civil courts. Judges do not need such appointments, they have excellent post-retirement benefits,” the judge said.
(Edited by Sunanda Ranjan)
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