Indian govt against transfer of petitions on anti-conversion laws

Which one is more powerful - Parliament or the Supreme Court of India? This is the raging debate that has created tremors in the Indian and also in the international community which value fundamental rights in a diverse/pluralistic culture. This debate goes back 56 years, to February 27, 1967, when Indira Gandhi was Prime Minster. On that day, the Supreme Court ruled in the Golaknath Case that Parliament (more specifically meaning the party in power) had no right to abrogate, destroy or alter citizens' fundamental rights by legislating amendments in the Constitution. But Indira Gandhi was not the one to lie low on this! Before returning to power in the 1971 Lok Sabha elections riding on the crest of her “Garibi Haatao” (eradicate poverty) slogan, she nationalized the banks. The Privy Purse of erstwhile princely states was also stopped. As a result of these steps, the question that arose was whether in the name of poverty eradication, the government can infringe upon citizens’ fundamental right to property. Indira Gandhi won 352 out of 518 Lok Sabha seats in 1971 election. She was convinced, by this majority verdict, voters gave her the right to interfere with Right to Property by amending the Constitution. Without further ado, she pushed through the 24th amendment. Article 13 of the Constitution states no government law can take away citizens’ fundamental rights. Article 368 lays down how Parliament can amend the Constitution. To make Supreme Court's Golaknath case verdict redundant, both the Articles were amended by incorporating that Parliament has the power to take away any of the fundamental rights. Thus, under the garb of restoring the primacy of the Parliament, she seized absolute power to amend the constitution through her government. Indira Gandhi knew that her constitutional amendment would face challenges in the Supreme Court. To offset this, she began appointing judges of her choice to the Supreme Court, so that cases challenging her government’s decisions would be rejected by her 'loyal' judges. A committee comprising Law Minister H.R. Gokhale, Minister of Steel Mohan Kumaramangalam and Education Minister Siddhartha Shankar Roy was formed. Their task was to suggest to Indira (1) Further amendments to the constitution needed to checkmate the Golkanath verdict, (2) Ways to appoint judges loyal to her government. Six judges were handpicked from various High Courts and appointed to the Supreme Court. Indira's hunch was right. Several cases challenging her government’s constitutional amendment cropped up. A thirteen-judge bench of the Apex Court was constituted to hear the case known as Kesavananda Bharati case. Among those thirteen judges were the six appointed by Indira before the case. The verdict was announced on 24 April 1973. The next day Chief Justice Sikri was to retire. Just before the verdict, Indira Gandhi got Justice A.N. Roy announced as the next Chief Justice of India, by superseding three senior judges. Even then Indira’s moves did not fetch her victory. In a 7-6 verdict, a 13-judge Constitution Bench ruled that the ‘basic structure’ of the Constitution is inviolable, and could not be amended by Parliament. Justice A.N. Roy, who had been announced by Indira Gandhi as the next Chief Justice, predictably ruled in favour of the supremacy of Parliament over the Supreme Court. But out of the six ``government loyalists'' who were appointed before the case, only five ruled in favour of Indira’s government. The sixth, Justice A.K. Mukherjee, did not toe the line. Fifty-six years later, Kesavananda Bharati case judgment has resurfaced. First it was Law Minister Kiren Rijiju who repeatedly whined about the current system – that the government has no role in the appointment of Supreme Court and High Court judges. Almost everything is in the hands of the Collegium comprising seniormost judges of the Supreme Court and High Courts. To ensure the government’s say in the selection of judges, Modi government legislated the National Judicial Appointments Commission (NJAC) Act. But the Supreme Court rejected it on the grounds that it was unconstitutional. After the Law Minister, Vice President and Rajya Sabha Chairman Jagdeep Dhankar jumped into the fray. He first blamed the Supreme Court for striking down NJAC Act. Then he criticised Kesavananda Bharati case 1973 verdict as a ``bad precedent''. He expressed his strong reservation against the Supreme Court’s power to nullify any law or amendment to the Constitution by the government on the grounds of violation of the Basic Features of the Constitution some of which are: Fundamental Rights, Rule of Law, Secularism, Independent Judiciary, Separation of Powers (Executive, Legislature and the Judiciary), Judicial Review, etc. These are intrinsic characteristics in the Constitution that parliament cannot erase by legislature, even when backed by absolute majority (more than 50% of the total membership of the house). The danger that leading legal luminaries see is quite obvious - it is Modi government’s unconcealed attempt to take control of the Supreme Court after subjugating virtually all the institutions under the Indian constitution. If this end is achieved, his government can amend the Constitution at will, as the judges loyal to it will snub all challenges in the Supreme Court. This is exactly what Indira Gandhi had also wanted. From the Law Minister to the Vice President, all are harping that because they have a huge mandate, whatever their government is doing is willed by citizens. Therefore, when Supreme Court judges are not contesting elections, how can they have the right to Judicial Review (one of the tenets of Basic Structure of the Constitution) and turn down /reject legislations by BJP government which has been returned to power by a thumping majority of more than 300 seats? Therefore according to them, parliament should have the final say on matters of law. From the standpoint of democracy, it is an irrefutable argument. But one loophole in democracy is that any government or party can become dictatorial by taking advantage of a huge electoral mandate. This is the reason framers of our constitution have stipulated that no government can use its unbridled power to amend the Constitution and pass legislations to take away citizens’ rights enshrined in the Constitution. According to the Constitution, Parliament and the state legislatures in India have the power to make laws within their respective jurisdictions. This power is not absolute in nature. The Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all laws. It has been noticed Modiji blames Jawaharlal Nehru for most problems in India. But paradoxically, he likes to follow in the footsteps of Nehru’s daughter Indira! (Inputs from: Anandabazar Patrika 26.01.2023) It is common knowledge that the Government wants pliable and spineless ‘yes’ men and women, mainly from the majority community, to be judges in the lower courts, high courts and even in the Supreme Court. In light of Vice-President Jagdeep Dhankhar (he was joined by Lok Sabha Speaker) criticising the Supreme Court judgment on the National Judicial Appointments Commission (NJAC) Act as “a glaring instance of severe compromise of parliamentary sovereignty and disregard of the mandate of the people,” and “one-upmanship, public posturing from judicial platforms” is leading to the “emasculation of the power of the legislature,” Dushyant Dave, senior advocate, Supreme Court of India and former president, Supreme Court Bar Association of India, wrote in the Indian Express dated 16th January 2023: “The attack on the judiciary is now out in the open. The world today is caught between autocracy and democracy. Let India realise the danger of this discourse. Let the legal profession awaken to defend our beloved Constitution and the Judiciary. ” In this connection, it is worth reproducing from the February 1971 issue of FREEDOM FIRST, some excerpts of Nani Palkhivala (a brilliant lawyer, taxation expert, economist and an orator par excellence who specialized in cases of constitutional law) on the primacy of the fundamental rights of the common man in India’s Constitution: “Our Constitution is primarily shaped and moulded for the common man. In a nascent republic where freedom is not bred in the bones of the people, the danger of dictatorship is always vastly greater than in democracies which are centuries old.” “In India freedom is not more than one election away from extinction. When an attempt to uphold the rule of law is called a manifestation of “vested interests"; and when the preservation of the sanctity of the Constitution is called the handiwork of “reactionary forces", it should be clear to any thinking mind that freedom is in peril.” “The great makers of our Constitution clearly intended that the integrity of the Constitution should be preserved against any hasty or ill-considered changes, “the fruits of passions or ignorance". The essential purpose of our Constitution is to ensure freedom of the individual and the dignity of man, and to put basic human rights above the reach of the State and of transient politicians in power whose naked juvenile chatter is covered by the fig-leaf of demagogic claptrap.” “No time in India’s history would be more inopportune than the present for amending the Constitution and empowering Parliament to abridge or take away the Fundamental Rights. With the growing sense of insecurity in different States, when fanaticism of all sorts—regional, linguistic, communal and economic—is gathering momentum, it would be not merely a mistake but a betrayal of the fundamental freedoms to enable Parliament to trifle and tinker with them.” “There is no doubt that the overwhelming majority of thinking men strongly believe in the Fundamental Rights and are deeply conscious of the outstanding role played by the Courts in preserving our cherished values. But unfortunately they constitute the silent majority. There are times in a country’s history when inaction and silence can be a culpable wrong, and we are living in such times. It is not enough that we believe in our national motto that truth will ultimately prevail. We must take active steps to see to it that falsehood does not have a very long innings before the ultimate moment of truth arrives.” (Source: Mint 27 March 2016).

Anti-conversion laws passed by eleven Indian states are against The Constitution of India guarantees the right to freedom of religion to not only individuals but also religious groups in India. This is enshrined in Articles 25 (Freedom of conscience and free profession, practice, and propagation of religion). These state laws have been passed abrogating/subverting this fundamental right enshrined in the constitution. What needs to be ensured is there is no forcible conversion but there should be no bar on voluntary embrace of a religion of one's choice. Instead of doing this, these eleven states have passed a blanket anti-conversion law which in itself is a use of force by the state machinery. Therefore, the petitioners have every right to approach the Supreme Court, which is the Apex Court of the country, against this blanket ban. Attorney General R. Venkataramani’s “serious objections” are as per the bidding of the powers that be and are unlikely to be entertained by the Supreme Court of India.

Under Article 32 of the Constitution of India any person can file a Writ Petition in the Supreme Court of India seeking to protect his/her fundamental rights, guaranteed by the Constitution of India. Any person can directly approach the Supreme Court of India only in the above mentioned situation.