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Will Every Criticism of a Judge or The Court Lead to The Call of ‘Judiciary Khatre Mein Hain’?

Harsh Mander had sought CJI Ranjan Gogoi’s recusal from the case on the conditions of detention camps in Assam.

An application filed by bureaucrat-turned-activist Harsh Mander, seeking recusal of Justice Ranjan Gogoi (Chief Justice of India), was listed yesterday before the Supreme Court of India. Mander, who had filed a petition shedding light on the cruel and inhumane conditions of those being held in detention camps in Assam, claimed that multiple observations made by justice Gogoi revealed bias and therefore the judge must recuse himself from the case.

Mander’s application which is available in the public domain now begins with stating his reasons for filing the original petition the inhumane conditions in which men women and children are living in these centres — which are worse than actual prisons, how authorities are not treating them any different from those convicted for serious crimes, how rights such as parole, recreation and others afforded to even the worst criminals are not being granted to the people being held in these centres.

Detainee Ratan Biswas with handcuff in hospital bed photo.
Goalpara camp detainee Ratan Biswas was handcuff to his hospital bed. (PC: Facebook)

Mander’s description, as also the countless media reports which have documented the condition of these people, reveal horrors equaling those held in Nazi prison camps. There are increasing reports of people in Assam committing suicide after a shadow is cast on their citizenship, of people dying in these detention centres for want of medical care, of family members being separated from each other.

BJP President Amit Shah, perhaps confident about the appetite Indians have for cruelty and persecution, has promised to ‘implement NRC’ and by extension replicate these horrifying conditions ‘across the country’.

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Mander’s application cites multiple instances, all reported by various publications of oral observations made by Justice Gogoi which reveal, to my mind, an extraordinary desire to throw more and more people in these detention centres and to ‘deport’ all of them.

Lawyer and scholar Gautam Bhatia has in various publications pointed out that besides being utterly immoral and cruel, the conduct of the Supreme Court is illegal and unconstitutional. Both Bhatia and Mander have cited various instances which show that the apex court is demonstrating greater eagerness to trap more and more people in the net than even the government of the day – the latter having at least on one occasion expressed a desire to release a small number of people, even if subject to nearly impossible conditions, a proposal which was scuttled by the apex court speaking through justice Gogoi. Citing one is sufficient here: “You are committed to bringing a five-star detention centre later? Do that! The existing centres are housing 900 people as against the so many who have been declared foreigners? Why are there not thousands?

Ranjan Gogoi
CJI Ranjan Gogoi (Photo: Twitter)

Let’s put aside for a moment the merits of the court’s orders in the matter and whether or not Justice Gogoi’s observations and orders reveal bias or not and come back to Mander’s application. Here is a reputed and respected petitioner who is telling the court that it is his apprehension that the judge hearing the matter may be biased and that justice will not be served if that judge does not recuse. It isn’t uncommon for litigants and/or lawyers to seek recusal. Sometimes judges recuse themselves for a variety of reasons. Sometimes requests for recusal are rejected.

Yesterday however, per the account reported in various publications it seemed that the request for recusal was seen not just as a personal slight, but also as an attack on the judiciary itself and an attempt to ‘browbeat’ the court. Per various reported accounts, first the court encouraged Harsh Mander to ‘speak freely’ and when he did speak freely, after making the absurd argument that oral observations made by a court do not signify anything, the court accused him of being ‘set up’ by the government of Assam, and finally by punishing him for the terrible sin of sharing his apprehensions by removing him as a petitioner.

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“You have to learn to trust judges” the bench reportedly remarked, but is trust built by subjecting a litigant to your wrath and thereby sending a message that expressing apprehensions will lead to punitive measures or is it built by demonstrating humility?

Harsh Mander

People cannot be scared into ‘trusting’ a court, they can only be scared into fearing it, and while the mighty must fear courts, those who seek its protection, those whose protection the court is constitutionally tasked with, to them the court owes a duty to be just and fair, in substance and in appearance. If the courts feel the need to repeatedly protect themselves from citizens instead of protecting citizens, if every criticism of a judge or even the courts will lead to calls of ‘courts khatre mein hain’ (the courts are in danger) then India is in far greater danger than we imagined.

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