Judicial independence is a necessary condition for democracy since it acts as a check to authoritarian power. However, a hallmark of the Narendra Modi years has been the inability of the courts to review even egregious acts of the Union government, such as Kashmir’s long communications blockade.
Now alarming new revelations show that the situation could be much worse than suspected.
Since July 18, hundreds of names from a leaked database of phone numbers have been published by a consortium of journalists across the world. The names reflect potential targets of illegal cyber surveillance using Pegasus, an Israel-made spying software so uniquely powerful that some experts have called it a “weapon”.
Alarmingly for India, this contains names related to the Supreme Court. The Wire reported that “among the numbers in the Pegasus Project database is one that was registered in the name of a sitting Supreme Court judge”.
While The Wire decided to withhold the name of the judge, given that it was unable to confirm with them if they were using the number at the time, the fact that weapons-grade spyware was used in this case is a troubling development that requires urgent attention.
Equally troubling was the fact that a Supreme Court staffer and her family were selected as potential targets days after she levelled sexual harassment allegations at Ranjan Gogoi, who was Chief Justice of India at the time.
As many as 11 numbers related to her and her family members were spied on by Pegasus – one of the largest cohorts that have emerged in the investigation so far. Clearly, the Supreme Court staffer who accused Justice Gogoi of workplace sexual harassment was a high value target.
At the time, a bench headed by Gogoi himself had heard the case. Eventually it ordered an inquiry into the incident. However, in March, two years after the hearing, the court closed the inquiry without any result. While there was no action against her allegations, the staffer, who had been fired in 2018, was reinstated in January 2020. There is still no reason available on why she was fired or reinstated.
As new information emerges that not only where her allegations not lawfully probed but she and her family were subjected to weapons-grade surveillance, it is worthwhile recalling that Justice Gogoi, during his tenure as chief justice, heard a number of cases, the results of which invariably favoured the Modi government.
In the Ayodhya matter, which was India’s most high-profile court case, a Gogoi-led bench wrapped up proceedings that had been underway for three decades. It decided to award the land on which the Babri Masjid stood till 1992 for a temple.
While the judgement was criticised by legal scholars, given that building a Ram temple in Ayodhya had been a key ideological commitment of the Bharatiya Janata Party, the judgement was a fillip for Modi.
His party quite openly credited the prime minister with ensuring the court judgment.
Another bench headed by Gogoi handed the Modi government a clean chit on allegations of large-scale corruption in the purchase of Rafale fighter aircraft from France. This is in spite of the fact that doubts about corruption in the deal continue in France itself, with a judge being asked to investigate the deal on July 3.
Given the prestige the Supreme Court enjoys among India’s elite, its clean chit on Rafale was critical in blunting the Opposition’s attack on Modi just in time for the 2019 polls. It was a mirror image of how the Supreme Court raising corruption allegations against the United Progressive Alliance had contributed greatly to a loss of credibility for the Congress in the run up to the 2014 Lok Sabha elections.
Rafale also found an echo in the Modi government’s ouster of the Central Bureau of Investigation’s chief Alok Verma in 2018.
Verma’s exit was preceded by a case of infighting within the CBI. He accused a special director within the agency, Rakesh Asthana, of accepting bribes – the allegation made even more shocking by the fact that Asthana was seen as very close to Modi.
As Verma was hastily sacked at 2 am, the Opposition alleged that the move was to preempt any CBI probe into Rafale. A few weeks before his ouster, Verma had met senior lawyer and activist Prashant Bhushan and former Union minister-turned-Modi critic Arun Shourie about the Rafale corruption allegations. NDTV reported that the move had upset the Modi government.
After Verma moved the Supreme Court, he was reinstated. And though the Supreme Court order at first glance seems to be in Verma’s favour since it gave him back his job, it actually did little to overturn the Centre’s actions.
While the issue was a simple one of law – the CBI chief has a fixed two-year term – the court delayed the process by delving into unrelated topics such as the Central Vigilance Commission inquiry into Verma, in spite of the fact that it had no bearing on the case.
Unusually, the Supreme Court’s reinstatement came with a significant rider: Verma could not take any new policy decisions. A day after his reinstatement, Verma was transferred out of the CBI, thus achieving the Centre’s aims when he was first sacked.
Yet another Gogoi-headed bench refused to hold the Modi government to account over illegal detentions in Kashmir, infamously telling one petitioner that she should have no desire for freedom of movement since “it is very cold in Srinagar”. A Gogoi-led bench also refused to stay the controversial system of electoral bonds, which allows anonymous funding to political parties, the main beneficiary of which is the BJP.
The BJP also benefited from yet another Gogoi-led bench decision when in 2019 the Supreme Court heard the case of 13 Congress legislators and three Janata Dal (Secular) legislators who had resigned from the Karnataka Assembly, placing the Congress-JD(S) government on shaky ground. In an unusual move, the Supreme Court moved to interfere directly in the workings of the legislature, ruling that the party whip did not now apply to the rebels. This decision sealed the deal and soon the government resigned to be replaced by the BJP.
In September, 2019, the Supreme Court collegium headed by Gogoi bowed to pressure from the Modi government and scrapped Justice Akhil Kureshi’s appointment as the chief of the Madhya Pradesh High Court, sending him to Tripura instead. Why the Modi government would not want Kureshi as chief justice in Madhya Pradesh might be connected to the fact that as a judge in the Gujarat High Court, he had sent current Union Home Minister Amit Shah to police custody in 2010 as an accused in the Sohrabuddin Sheikh fake encounter case.
After Gogoi retired from the court, the Modi government nominated him to Parliament, adding even more fuel to allegations that the chief justice had shared an unduly close relationship with the Union executive.
Multiple red flags
Note that in many of these cases listed above, investigations have found possibilities of Pegasus spying on other actors involved in proceedings – yet another point of correlation that shows how important these events were politically.
With regard to Rafale, both Anil Ambani and his close aide Tony Jesudasan are on the list of names. Ambani’s Reliance Defence was Dassault’s partner in India with former French president Francois Hollande claiming that Ambani was made part of the deal on the insistence of the Modi government.
In the case of Karnataka, high-profile targets such as the phone numbers of deputy chief minister G Parameshwara and the personal secretaries of chief minister HD Kumaraswamy and former chief minister Siddaramaiah were on the leaked list, suggesting they too could have been Pegasus targets.
In the CBI case, three numbers belonging to Verma were added to the list hours after the Modi government fired him on October 23, reported The Wire. Later also added to the list were numbers belonging to Verma’s family as well as Rakesh Asthana.
Till now, much of the thinking around judicial independence in India has been based on the assumption that judges themselves were above board and all that is required to keep the courts free is to insulate them from the pushes and pulls of popular politics.
An example of this is the 2015 Supreme Court judgment that ruled that India’s unique collegium system of judges selecting judges was part of the Constitution’s inviolable “Basic Structure” and hence could not be removed. It was thought at the time that by legally insulating judge selections from outside forces, judicial independence could be preserved.
The Pegasus revelations, of course, upend those assumptions. The involvement of a weapon as powerful as military-grade surveillance in the judicial world points to the alarming possibility that judicial independence can potentially be compromised through extralegal means even in the presence of legal safeguards.
Given the scale of the Pegasus revelations, it is clear that India urgently needs to rethink how it can better protect judicial independence.