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Modi’s Full Court Press in India

Pankaj Nangia/India Today Group/Getty Images
Indian Prime Minister Narendra Modi attending the swearing-in ceremony for the new chief justice of the Supreme Court, Dipak Misra, New Delhi, August 28, 2017

The rule of law in India has been imperiled ever since the Bharatiya Janata Party (BJP) took power in 2014. Some threats, such as vigilantism by Hindu extremists, have been largely ignored by the state. Others, like the intimidation of journalists, have often featured Internet trolls encouraged by BJP leaders. The most troubling instances have come directly from the government: when it has used investigative agencies to prosecute political opponents—which, in the case of the Indian state of Bihar, enabled the BJP to join the ruling coalition—or when it has elevated people accused of violent crimes to the top rungs of leadership, such as the Uttar Pradesh chief minister, Yogi Adityanath. Yet recent events in the Supreme Court suggest something even graver is afoot—that the basic structure of India’s democracy may be shakier than it had seemed.

The crisis became impossible to ignore in January, when the second, third, fourth, and fifth most senior justices held an extraordinary press conference. They told the media of their grave objections to the behavior of the chief justice, Dipak Misra, and they issued an ominous warning: “unless this institution is preserved,” they said, “democracy will not survive in this country.”

More than once has the Supreme Court been called upon to preserve liberal democracy in India. In 1973, the court ruled against attempts by the government of Prime Minister Indira Gandhi to circumvent judicial authority and curtail the basic rights of citizens, such as the right to property. This was part of what one of her ministers called an effort to remake “the entire socio-economic fabric of our country [through] greater and greater State intervention.” The Gandhi government responded to its legal defeat by installing a sympathizer as chief justice, provoking other judges to resign. Two years later, when the government argued that the rights of citizens to life and liberty could be suspended, the Supreme Court agreed. Months of summary detentions, forced sterilizations, and press censorship followed, during the 1975–1977 period known as “the Emergency.” It’s unclear how Indian democracy would have survived if Gandhi had not called elections, anticipating victory—and then lost.

The behavior of the current chief justice has called into question once again the independence and credibility of the Supreme Court. In April, when opposition parties sought to impeach Misra—the first such attempt in Indian history—they listed five allegations against him, including involvement in a pay-to-play scheme, the falsification of official documents, and behind-the-scenes manipulation of sensitive cases. The outcomes of these cases have favored either Misra personally or the BJP.

One case in particular has provoked the most dogged investigations and darkest allegations of conspiracy: the inquiry into the death of Judge Brijgopal Harkishan Loya. It is a scandal within a scandal within a scandal: a sensational criminal trial, the mysterious death of the judge presiding over it, and then the dubious handling of the inquiry into that death by the Supreme Court.

At the time of his death, in 2014, Loya was a judge on a special court for India’s Central Bureau of Investigation. He was hearing a murder trial in which the principal accused was Amit Shah, Prime Minister Narendra Modi’s trusted lieutenant and the current president of the BJP. The alleged crime had occurred some years earlier, in the state of Gujarat, when the police had killed a man named Sohrabuddin Sheikh, and his wife, Kauser Bi, reportedly at the bidding of Shah, who was then junior home minister in the state government, which was led at the time by Modi himself.

By all accounts, Loya was presiding over the case with great diligence. But before he could frame charges against Shah, two fateful things befell him. First, Loya mysteriously lost the security protection that had been provided by local police. Then, a week later, his colleagues in the judiciary insisted that he attend the wedding of another colleague’s daughter. According to medical records and the judges who say they were with Loya at the wedding, he suddenly developed chest pain, was rushed to a series of hospitals, and died of a heart attack.

A series of reports on the website of Caravan, a small but gutsy monthly magazine, have chipped away at this version of events. Over a dozen employees of the hotel where Loya was supposedly staying told Caravan that they remember nothing about a judge getting sick or being rushed to the hospital, a drama that they said would be almost impossible not to notice. Several employees of the hospital that issued Loya’s postmortem said that Makarand Vyawahare, a doctor closely connected to the BJP, conducted the examination in secret. Vyawahare reportedly shouted down a junior colleague who was making out the report and directed the doctor to work in front of him. One employee told Caravan that Loya had a bloody head wound, which is not mentioned in the postmortem. Its conclusion that the cause of death was a heart attack is highly questionable, since the report does note that Loya had congested dura, a form of brain injury that indicates physical trauma to the head. Vyawahare later faced unrelated allegations of professional misconduct, including some seventeen charges of manipulating postmortems, according to a local newspaper.

The list of dubious circumstances goes on. The date on the electrocardiogram is incorrect; the occupancy register at the hotel appears to have been tampered with; and Loya’s phone was returned to his family with call records and messages erased. The judge’s sister told Caravan that Loya had said that Mohit Shah, then the chief justice of the Bombay High Court, the top court of Maharashtra, Loya’s home state, had offered Loya a bribe of approximately $15 million for a “positive judgment” in the Amit Shah case. Loya’s father corroborated to Caravan the broad outlines of this story.

There is no direct evidence that Loya was murdered, but these findings strongly suggest some kind of cover-up. Remarkably, though, the Supreme Court ruled that there was no basis for even a “reasonable suspicion” about the circumstances of Loya’s death. This ruling was one of several recent examples of cases before the Supreme Court in which senior judges have been cut out of the decision-making, with responsibility allocated instead to the chief justice himself or to junior judges—who, in the exceedingly hierarchical world of the Indian judiciary, generally defer to the wishes of their most senior colleague.

Dipak Misra, who as chief justice controls the roster of Supreme Court judges, initially allocated the Loya case to Arun Mishra, a relatively junior judge and one who is reportedly close to senior BJP leaders. The following day, the four senior judges held their news conference, at which they made clear that they had particularly objected to the chief justice’s handling of the Loya case. Mishra subsequently recused himself, and the chief justice transferred the case to another bench of which he was a member, but one that did not include any other senior judges. The other two members of the bench appointed by Misra, A.M. Khanwilkar and D.Y. Chandrachud, had both served on the Bombay High Court (together with Mohit Shah) and knew multiple people involved in the case, including witnesses who said that Loya died of natural causes.

The court’s decision reads like a one-sided attempt to negate any grounds for suspicion about official misbehavior. It relies strongly on the insistence that the judges who were with Loya “cannot be questioned.” Two lawyers arguing the case sought to cross-examine the judges and have their testimony deposed. The Supreme Court declined this request, and wrote that the effort shows “the real motive of these proceedings which is to bring the judiciary into disrepute.”

Another significant basis for the decision is a report by the Maharashtra state intelligence services, which, along with police officers, questioned named sources in some Caravan stories and said that those witnesses had recanted statements they’d made to Caravan’s reporters. The court does not explore the possibility that these retractions might have been made under duress; nor does it appear to have consulted any journalists at Caravan, which published video and audio recordings of its interviews. Much of the substance of the magazine’s reporting is not even mentioned in the court’s ruling.

The court further makes a strange abdication over the actual cause of Loya’s death. Two eminent doctors had publicly challenged the plausibility of Loya’s electrocardiogram, histopathology report, and postmortem finding, while Maharashtra officials produced another doctor who defended the medical record. Facing this troubling lack of consensus among medical experts, the court simply said it was “not really considering” which doctor’s opinion was correct, thus leaving the disputed matter of what caused Loya’s death an open question.

The Loya affair is not the only Supreme Court case that has raised controversy. The crisis began last fall, when Justice Jasti Chelameswar, the most vocally critical member of the court and its second most senior judge, agreed to hear a petition seeking a special investigation into allegations of bribery involving the chief justice. Misra responded by canceling Chelameswar’s order and directing the administration of the case himself, despite the obvious conflict of interest, along with handpicked junior judges. Predictably, a bench selected by Misra quashed the petition. The only people punished, in fact, were the petitioners, who were fined over $37,000 for making allegations that the Supreme Court described as “contemptuous, scurrilous, baseless, and reckless,” according to one newspaper.

Arvind Yadav/Hindustan Times via Getty Images
Justice Jasti Chelameswar at a news conference at which he and three other senior Indian Supreme Court judges sharply criticized Chief Justice Dipak Misra, New Delhi, January 12, 2018

Misra’s assigning of politically sensitive cases to what the senior judges call benches of “preference” has raised questions about his probity. In several articles and interviews, including one with me, the eminent lawyer and judicial activist Prashant Bhushan has aired a theory that, as he wrote in April, “the BJP is using the CJI [chief justice of India], by blackmailing him, to get its work done through him in court.” As long as the government does not pursue a corruption case against Misra, Bhushan suggests, the chief justice will do the government’s bidding. 

Have the bad old days of government control of the court returned—under what Ghulam Nabi Azad, the leader of the opposition in the upper house of parliament, and others have called an “undeclared emergency”? After a string of victories in the Supreme Court, the BJP received a decidedly mixed verdict last month regarding a disputed election in the state of Karnataka, indicating that not every decision can be cooked. BJP leaders have said it is the Congress party, not the BJP, that seeks to “demean, degrade, and denigrate” the judiciary, and frequently observe that Congress bears responsibility for the one actual, historical Emergency. Many observers remain concerned. Gautam Bhatia, the author of a book on free speech and the Indian constitution and a media commentator on judicial affairs, told me that the government’s statements on the judiciary should not be taken at face value. “Whatever is happening is happening despite that rhetoric,” he said. “They learned a lesson from [the Emergency], so there’s no rhetoric of that time. There’s no outright confrontation. It’s more like a co-option that is happening.”

Such stealth interference is also playing out in recent tussles over court appointments. At least two judges, Jayant Patel and K.M. Joseph, have been demoted in the state-level high courts or denied a promotion to the Supreme Court after rulings unfavorable to the BJP. On April 26, Misra defended the government’s right to reject Joseph’s elevation to the top court. The next day, two retired senior judges criticized the government, with one of them, the former chief justice R.M. Lodha, telling The Indian Express that the move to block Joseph “strikes at the very heart of the independence of the judiciary.”

Away from the spotlight on the Supreme Court, a lower court ruling in April also raised questions about judicial independence. Swami Aseemanand, a Hindu extremist allegedly involved in five bombings in which 119 people were killed, was acquitted and allowed to walk free. Aseemanand has close ties to the BJP, including to Modi himself. He had confessed to his part in the bombings many times, including on one occasion to a Delhi magistrate. Hours after Aseemanand’s acquittal, the judge presiding over the case resigned, citing “personal reasons.” According to the news and analysis website The Print, this judge faces an investigation for corruption in an unrelated matter—very like the predicament Bhushan suggests Chief Justice Misra finds himself in.

The immediate solution to the judiciary’s woes advocated by Bhushan and the parliamentary opposition was Misra’s impeachment. But after opposition parties submitted a motion to impeach, it was rejected by the vice-president, Venkaiah Naidu, formerly a longtime BJP politician and minister in Modi’s cabinet. Members of the Congress party tried to challenge the constitutionality of Naidu’s rejection in the Supreme Court, arguing that the move was “cavalier, cryptic, and abrupt,” but halted the effort when their petition was listed as due to be heard by Arun Mishra and none of the senior judges. Barring some unforeseeable event, then, the chief justice will remain in power until his term ends in October this year.

A former chief justice of the Delhi high court, A.P. Shah, has suggested more permanent reforms. Among other things, Shah recommended that the Supreme Court adopt the far more transparent system of allocating cases used by the European Court of Human Rights. This would check suspicions that the chief justice might be abusing his or her discretionary power. But the attorney general, K.K. Venugopal, has come out against any measures that would dilute the chief justice’s authority. All told, it is hard to avoid the conclusion that the government is interested in keeping the workings of the judiciary opaque. “The decisions [in the Aseemanand and Loya cases] have visibly fired-up the BJP cadre,” noted the Indian newspaper Financial Express. “The ruling BJP couldn’t have expected better news.”

Narendra Modi’s ruling party seems to have learned from the clumsy overreach of Indira Gandhi’s Congress. His government has delicately combined professing horror at the past episode of arbitrary rule with creeping authoritarianism on its watch.