New Delhi: The judiciary cannot remain “in hibernation while the population of this country is in a deep depression, lives at every moment under fear and the threat of death, where the feeling prevails that some privileged people enjoy all the protections but most of them are powerless ”. .
Former Allahabad High Court Chief Justice Govind Mathur, who retired on April 13, has defended legal interventions amid the Covid-19 pandemic, telling ThePrint in an interview that ” constitutional courts fully understand their authority and competence ”.
“Courts only intervene in political or administrative matters if they are convinced that such a policy or administration seriously infringes the precious rights of citizens or any person,” said the judge.
Judge Mathur, who began his judicial career in 2004 and has established a reputation as a “defender of civil liberties” and fundamental constitutional values, tackled several key cases during his tenure at the High Court of Justice. ‘Allahabad.
He questioned several decisions made by the government of Yogi Adityanath in Uttar Pradesh and quashed National Security Act (NSA) charges brought against Dr Kafeel Khan for a December 2019 speech against the law of citizenship amendment (CAA). Another notable judgment saw him wrestle the state government for the “name and shame” posters plastered against those accused of damaging public property during anti-CAA protests.
In the interview, Mathur expressed regret that the executive “always acts like colonial rulers” and ignores court rulings and orders on the Sedition Act. “It is a well accepted fact that criticism of the government is not seditious in law,” he said.
Judge Mathur also criticized the judiciary and said it was not sufficiently vigilant about constitutional values and the rights of Indian citizens when considering bail for those arrested for sedition or under laws such as the Prevention of Illegal Activity Act (UAPA) and the NSA.
He criticized what he described as the Indians’ lack of understanding of the concept of democracy and said some members of the judiciary did not know enough about the philosophy behind the Constitution.
The collegial system for appointing judges is the “worst system,” he added, and said it should be scrapped. He also disapproved post-retirement commitments for judges of quasi-judicial bodies.
Read also: WBU violence, CAA protests – the cases that made Judge Mathur a ‘civil rights defender’
‘An old song’
As devastating second wave of Covid grips India, many high courts intervened and issued instructions to state governments / UTs as well as central administration on how to deal with the situation. However, some have raised questions about the wave of orders. Asked about the critics, Judge Mathur was dismissive.
“It’s an old song sung over and over by a section, either to save the wrongs of the executive or on fail to understand the kinetics of the development of law in our country, ”said the judge.
“These are the right circumstances where the courts must come forward to help the state, to reach out to all those concerned,” he added.
The administration’s “mismanagement”, he said, is “certainly responsible for the deaths” and “causing serious damage to the citizens’ elevator.”
On the Supreme Court’s remark this month that the “doctrine of impossibility” – a contract law concept which refers to situations in which it is impossible for a party to perform its obligations under a contract – applied to the high courts, Judge Mathur declared that this was a well-established principle. Courts generally don’t make unenforceable orders, he added.
The SC made this observation during a stay on May 17 order of the High Court of Allahabad, where he suggested several measures for the development of medical infrastructure in the state and observed that the entire health system in villages and small towns of the UP is “Ram bharose (in the hands of God)“.
“I read this order from HC. It would have been better for the SC to discuss the direction which it believed was unenforceable, ”he said in defense of the High Court order.
The “ worst ” Collegium system
Judge Mathur had a bad opinion of the widespread use of the sedition law to deal with voices against the government. “It is really sad that our executive does not accept the law enacted by the Supreme Court.”
He said it was a well-established proposition that it is not seditious to have views different from those of the government.
“This was retained a lot in 1962, then developed in several other cases. But the executive does not want to accept this. Any voice of protest, according to them, is sedition, ”he said.
He called for making Article 124A of the Indian Penal Code, dealing with sedition, an unrecognizable offense (available, and when the accused cannot be arrested without a court warrant and the police cannot initiate an investigation without court permission), as before 1973.
“An important aspect is that we have not accepted our constitutional and democratic values. Our understanding of democracy is all about counting heads to have a ruler and (we) don’t accept that it is a way of life. You cannot be a Democrat just to elect a leader and a dictator or a feudal for all other events, including governance, ”he said.
Judge Mathur stressed that preventive detentions – for example, under the NSA – should be invoked in the rarest of cases and not when the matter can be dealt with otherwise under general law.
He even urged the judiciary to become more vigilant over constitutional values and the rights of Indian citizens in areas where dissent is sought.
“We are not sufficiently equipped with the philosophy on which our Constitution is based. The lack of this knowledge among members of the judiciary is certainly damaging our justice delivery system, ”he said.
The collegial system of appointing judges, added Judge Mathur, harms the self-esteem of legal practitioners and develops sycophancy among lawyers and bailiffs. “We have to have a better system,” he said.
He added that post-retirement appointments for judges in quasi-judicial bodies defeat the purpose of these tribunals as expert arbitration forums. “These bodies are now akin to civil courts. Judges don’t need such appointments, they have great post-retirement benefits, ”said the judge.
(Edited by Sunanda Ranjan)
Read also: ‘Name and shame’ posters, Kafeel Khan case, Hathras – 5 times Allahabad HC shut down the government
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