Manipur crisis part 1: What does one do when a judicial Order triggers a riot?

This is the first of our three-part series trying to observe the Manipur crisis from as many angles as possible. In this piece, the author argues that the chaos in Manipur stems from the actions of a judge who exceeded his brief.                                                                               

—

I have been following events in Manipur with increasing alarm and concern. Only recently India has managed to restore a semblance of order in the region that can be a catalyst for long-term stability there. As the Armed Forces (Special Powers) Act, 1958 (AFSPA) was slowly being withdrawn from many districts in the state, we had managed to get Irom Sharmila to stop fasting and contest elections.

There was a sense that we had the state under control and things were gradually improving. For a while, a peaceful Manipur within the foreseeable future seemed like a real possibility.

Loss of lives and property during continued violence

But now the state appears to be on the brink of a civil war. The Indian Army and the Assam Rifles have been sent in and there are calls for imposing President's Rule and the Union has issued directions under Article 355 to try and restore order. President's Rule is difficult in view of there being an elected responsible government and unlikely given that the ruling party in Imphal is the same one as in Delhi. They will be loath to dismiss their own party's government in Imphal.

Also read: Manipur crisis: Supreme Court directs Union and state governments to insure protection of religious places, relief and rehabilitation

But now the state appears to be on the brink of a civil war. The Indian Army and the Assam Rifles have been sent in and there are calls for imposing President's Rule and the Union has issued directions under Article 355 to try and restore order.

The death toll is climbing rapidly towards three figures and tens of thousands have been displaced. There has been large-scale destruction of property and atrocities on communities. Ceasefires with rebel insurgent groups operating in the region no longer appear to be worth the paper they were printed on.

From what snippets I hear from my Manipuri colleagues and friends, many have been personally affected by the violence and the situation is not something of which India can be proud. Especially not in a year where India holds the presidium of the G20.

Case of judicial overreach

In April, the Manipur High Court issued show cause notices to the president of the All Tribal Students Union of Manipur (ATSUM) and the chairman of the Hill Areas Committee (HAC) for passing resolutions and issuing press statements against an Order of the court.

On March 27, a single-judge Bench of the Manipur High Court, Justice M.V. Muralidaran, directed the state government to consider the inclusion of the Meitei community in the list of Scheduled Tribes, and to send recommendation to this effect to the Union Ministry of Tribal Affairs expeditiously, preferably within a period of four weeks.

The death toll is climbing rapidly towards three figures and tens of thousands have been displaced. There has been large-scale destruction of property and atrocities on communities.

As the Chief Justice of the Supreme Court D.Y. Chandrachud orally remarked during an special leave petition (SLP) hearing challenging the Order, many Constitution Bench judgements clearly state that judicial orders cannot be passed to change the Scheduled Tribes list.

The judiciary is not in a position to decide which tribes require special protection under the Constitution. It just does not have the kind of administrative machinery or policy expertise that is required to come to such a policy conclusion.

Yet it was done anyway and this caused significant disquiet amongst the existing Scheduled Tribes in Manipur. This action was compounded by the issuance of show cause notices against those who critiqued the order.

All of this perhaps convinced the agitating tribes that unless they take to the streets, their interests won't be protected and slowly the solidarity march descended into violence and India is now looking at an armed ethnic conflict within her borders. Borders that are sensitive due to the porous and tense nature of the Indo-Burmese frontier.

Need for judicial accountability

This brings up the question of judicial accountability. To whom is Justice M.V. Muralidaran finally accountable? If any other public servant had failed in this catastrophic manner, that servant would have been suspended and probably faced a dismissal. But there is nothing the public or government can do to hold Justice M.V. Muralidaran to account for his ruling. A ruling that caused a riot and a ruling that the Chief Justice of the Supreme Court clearly stated was against the law. How is it that Justice Muralidaran continues to serve on the Bench after causing so much chaos?

There has been large-scale destruction of property and atrocities on communities. Ceasefires with rebel insurgent groups operating in the region no longer appear to be worth the paper they were printed on.

Also read: As Manipur continues to burn, UN and ITLF issue statements even as Union Home Minister Amit Shah visits state

The Union Minister for Home Affairs Amit Shah visited Manipur recently and he too has come out and held the high court responsible for the chaos saying that "Manipur high court's hasty decision led to ethnic violence, 70 deaths".

There is an intra-court appeal pending against that Order but because of the chaos, judicial administration in the state has been affected and as on date the problematic Order continues to stand. How did we get to a point in this country where a member of the senior judiciary can essentially, with a stroke of a pen, set a state on fire and face no consequence whatsoever.

This brings up the question of judicial accountability. To whom is Justice M.V. Muralidaran finally accountable? 

The judiciary in this country appoints itself via the collegium. Many democrats such as myself have had to make peace with that fact, as a necessary evil to preserve judicial independence. But if the judiciary appoints itself, surely it needs to hold itself to account.

Also read: Manipur crisis: A fresh incision in old fissures

No one can really discipline a senior judge; they can at most be impeached for misbehaviour or incapacity. The issue here is passing a perverse Order contrary to law is not an impeachable offence. It shows incompetence and the Constitution is very clear, a judge cannot be dismissed on the grounds of incompetence. A bad judge cannot be dismissed, disciplined or reprimanded.

It is vital that all constitutionalists who wish to preserve what is left of judicial independence in India call for the resignation of acting Chief Justice M.V. Muralidaran,  to set in stone the fact that passing bad Orders has consequences.

But here is what we can do as constitutionalists. When you have a judge who causes so much chaos, we can call upon him to resign. Such an action will restore the faith in democracy and rule of law of a large section of the people in Manipur who now think the high court is biased towards one part.

It is vital that all constitutionalists who wish to preserve what is left of judicial independence in India call for the resignation of acting Chief Justice M.V. Muralidaran, to set in stone the fact that passing bad Orders has consequences. As a constitutionalist myself, I do so now.