The Supreme Court has strongly rebuked the demand for the recusal of Chief Justice Ranjan Gogoi from the hearing of Harsh Mander’s case related to infiltrators in Assam. Dismissing the appeal, a bench headed by Chief Justice said that if the petitioner does not trust the judges, the institution will collapse. Mander had filed the case about the alleged hellish condition of the detention centres where Bangladeshi intruders have been holed up.

CJI Gogoi said such applications are tantamount to interference in the institution. The comments made during the hearing are part of the debate. The CJI said, “Don’t even remotely think that we will recuse. We will not allow anyone to browbeat the institution. Recusal will be destructive for the institution.”

“Don’t even think of it… Learn to trust your judges. The day you don’t trust your judges, you’ve had it,” CJI Gogoi told Mander.

One of the blue-eyed boys of the UPA dispensation for his Ford Foundation-sponsored activism, Mander had alleged that the CJI was “using” his petition on the “plight” of those lodged in the detention centres “to ensure that the state… commits to mass deportation of alleged foreigners”.

The bench of the CJI, Justices Deepak Gupta and Sanjiv Khanna dismissed Mander’s plea. It has replaced his name with the Supreme Court Legal Services Authority as the petitioner. Further, it appointed advocate Prashant Bhushan as amicus curiae on the issue of the detention centres.

Harsh Mander’s network abroad

Earlier in this decade during the heady days of anti-corruption movement in the country, it was found in the US that the discredited Ghulam Nabi Fai, along with anthropologist-activist Angana P Chatterji and pro-Maoist Arundhati Roy was associated with at least one or more of three anti-Indian organisations: The Pakistani Intelligence Agency ISI, Indian-American Muslim Council (IAMC) and Progressive South Asians (PROXSA).

Out of the dubious outfits above, the IAMC ran a website that gave the notorious Students Islamic Movement of India (SIMI) a clean chit and projected India as a dangerous place for minorities to live in. The IAMC supported Harsh Mander, who was then a prominent AAP member.

Mander was a member of the National Advisory Council (NAC), an extra-constitutional body of NGO heads that used to “advise” the Manmohan Singh government on policy matters.
On 2 May in the Supreme Court, the bench rebuked Mander, responding to his petition that shed copious tears for Bangladeshis, saying, “All that we would like to say is that the inability or handicap of a judge to hear a matter should be perceived by a judge himself and not a litigant.”

But the petition is just a sign of the deep state working, where even some top bureaucrats and media houses are involved in the build-up of the anti-India. Mander’s petition was based on news reports about certain things the judges said during the hearing of the matter on 25 April, which was passed off as “observations” of the bench.
That day, the bench admonished Assam chief secretary Alok Kumar for his affidavit that said that the Foreigners Tribunals in the State could allow infiltrators who have been detained for more than five years to be released if they met certain conditions.

Bureaucrats part of the game knowingly or unwittingly?

“How do you expect the Supreme Court to be a party to an order allowing those who have no right to remain in India to be allowed to do so on fulfilling conditions? Your government has not succeeded in following the Constitution and you expect the Supreme Court to be a party to it,” the bench had told the chief secretary. It warned the bureaucrat that departmental proceedings could be initiated against him.

Trying to safeguarding the national interest, the bench asked why only 900 people were in the detention centres while, according to the Assam government’s statement, over 1 lakh people had been identified as foreigners.

However, detection of foreigners illegally staying in India following proper procedures is a humongous task that even the BJP government, which made infiltration a big issue in the campaign for the last Assembly election in Assam, is unable to accomplish. During the hearing, addressing the chief secretary of the State, the bench was visibly unhappy about Assam government’s inability to locate the estimated more than 99,000 Bangladeshis who may have mixed with the local population.

Solicitor General Tushar Mehta, appearing for the Assam government, said chief secretary Kumar did not have any knowledge of Mander’s application. Mehta said Kumar was of the view that it must be opposed.

Court’s response to media reports that suited Mander

On Thursday, the CJI told Mander, “What has been said in the course of a healthy debate has been interpreted by you to be an expression of opinion.”

The bench rebuked Mander by saying if he had no knowledge of how judges speak during a debate and he passes off everything they say as observations of the court, he should allow trained lawyers to handle the matter.

Cracks in the NGO brigade

But then, Mander’s lawyer was Bhushan. Why was Bhushan not explaining to his client the difference between observations and obiter dicta? Because Mander told the bench, he had discharged Bhushan and now he was appearing in person to argue his case.

“Your petition is still pending before this court… No final decision has been taken and you say CJI has prejudged the case? You are trying to serve the country. Is this how you serve the country?” the CJI asked Mander who replied that “I stand by my anxiety”.

“See what damage you have done to the institution,” the CJI said, “what if we tell you that the chief secretary has set you up and we will issue contempt notice to him? How will you answer?”

Mander replied: “Merely by saying it’s completely untrue.”

Media role in building anti-India narrative

Mander said he had run into “observations” of the bench in the Hindustan Times newspaper and the Live Law web portal.

“So you take a quotation from social media and throw it at the court and ask the CJI to recuse? Live Law? Is it a registered newspaper? What responsibility does it have?” the CJI said, adding, “What will happen if institutions crumble? Where will you be?”

Justice Khanna said that the petitioner must rely on the final order and not by “observations” made during hearings.

The CJI agreed. Justice Gogoi said, even after the final order, there is a scope for review petitions. He said, “We make mistakes. Of course, we do”.