INDIA: Judiciary fails to stand up for equality, justice and human dignity

December 10 is Human Rights Day, and this year will celebrate 70 years of the Universal Declaration of Human Rights (UDHR). The theme this year is “let’s stand up for equality, justice and human dignity”, a fitting exhortation for the year ahead in India.

For the ordinary person in India, the High courts and the Supreme Court serves as the beacon of hope, the last resort that can be relied upon to dispense justice. There is an overwhelming sense that the apex court, especially, will not led down the cause of justice, even if the courts below may have.

This was recently seen in the tumultuous case of the young woman, Hadiya, whose fight for freedom reached the Supreme Court. Despite instructing her to appear in the SC, to hear her side of events, the 3-Judge Bench made her waitfor a good two hours, discussing the various aspects of the case and even considered allowing her to speak the next day, before being prodded by the senior counsel to at least give her a hearing, as promised. The patronising and patriarchal judgment of the Kerala High Court, which placed Hadiya in the custody of her parents due to her ‘weak and vulnerable mind’ was in appeal before the SC.

In November 2016, the SC made it mandatory for the national anthem to be played before movies are screened in theatres, and for people to ‘show respect’ to the National Anthem and the flag. Forcing hyper-nationalist patriotism, the judgment allowed the self-proclaimed protectors of Indian pride to bully and heckle those who refused to stand or were unable to.

This year also marks 25 years since the horrific disaster that was the demolition of the Babri Masjid mosque. A national shame, the courts in India have failed to hold the leaders accountable for brazenly goading party workers and destroying a religious structure despite video evidence recording the crime. The demolition resulted in one of the deadliest riots India suffered, and 25 years later, the SC has adjourned the appeals for further hearing to 8 February, 2018.

This December marks 33 years after the Bhopal gas tragedy that killed thousands of people, due to the leakage of the deadly gas Methyl Isocyanate, at a Union Carbide factory. Many thousands are still suffering the fallout, the after-effects of the leakage that contaminated the ground water and the soil, causing birth defects and serious illnesses including cancer. The families of victims and the survivors are still fighting for justice, for adequate compensation, for sufficient rehabilitation and for cleaning up the toxic site of the disaster.

More recently, this year marks 2 years since Mr. Mohammad Akhlaq was lynched, dragged from his house by a murderous mob of fundamentalist Hindus on allegations of cow slaughter. The police filed a case against Akhlaq’s family accusing them of cow slaughter and this year, all 18 accused are out on bail.

The country is also seeing repeated calls for a independent investigation into the suspicious circumstances surrounding the death of Justice Mr. Brij Loya. It has been 3 years since the death of the CBI court special judge who was hearing the case of the Sohrabbudin Sheikh encounter killing, where the prime accused was Mr. Amit Shah, the current BJP President. Loya’s sister claimed that they had been offered Rs.100 crore for a ‘favourable’ order by the then Chief Justice of the Bombay High Court, Mr. Mohit Shah.

Finally, in a bizarre twist, the SC imposed a hefty fine of Rs. 25 lakhs on the NGO, Campaign for Judicial Accountability and Reforms and lawyer Ms. Kamini Jaiswal who filed petitions in the infamous judges’ bribery case, seeking an independent investigation into the allegations against former members of the higher judiciary. Allegations of corruption against the judiciary are extremely serious and must be investigated with urgency. But the SC with this perverse action has shown itself to be absolutely averse to allowing the rule of law to prevail.

The role of the courts, especially that of the higher courts in a criminal justice architecture, that is in shambles, is crucial. But as demonstrated through these important incidents that has changed the course of history for the nation, the courts operate with an overwhelming bias, swayed by cultural mores and political impetuses.

Instead of standing up for those who need them the most, the courts are transforming into vehicles of the patriarchy and the political elite who are gunning for a hyper-nationalist, majoritarian India. The courts have failed to ensure that the rule of law is supreme and the human rights of the most vulnerable in the country are protected.

This Human Rights Day, the Asian Human Rights Commission calls for the courts in India to stand up for equality, justice and human dignity, to restore the ordinary person’s faith in the judiciary.