In our type of democracy we are all obsessed with elections and of course numbers as that decides who rules. Democracy can be tyranny of the numbers in case institutions created under the constitution to maintain the balance are not intact. It is the credibility of the institutions that brings in legitimacy. The Western countries are also passing through a phase of ‘far right’ democracy. But their institutions seem to be in place.
In India we always believed that the Supreme Court is a panacea for all our ills and evils. The SC has played a stellar role in protecting citizens’ rights, environment and laying down certain principles in running of the executive. The SC’s enforcement of property rights and striking down of governmental actions in the earlier 70s saw the resurgent SC standing up to the powerful executive. That the SC caved in during emergency is a different matter. Even during emergency there was one who thought it fit to dissent and paid for it. That was Justice HR Khanna.
The parliament and executive have failed the country. We thought institutions like the Election Commission, courts, and a robust media would come to our rescue in times of need. I remember an article by Fali Nariman on the 60th anniversary of our republic extolling the EC and the SC as our saviours. I have spent a lifetime defending the majesty of the courts. My friend Shridhar Kamat is no more. He always cautioned me on placing undue faith in the unelected. He emphasised that the courts are not accountable to the people. I believed they would remain accountable to the constitution.
Certain recent events have caused a concern about the health of our democracy and the SC which has failed to keep up to our expectations.
Sanjay Hedge tells what happened in 1991. Shambnan Lone (sister of Sajad Lone) was a junior advocate in the office of now AG, KK Vennugopal. She was picked by the Delhi police on a terror related charge. KK Vennugopal stormed into the court presided by CJI HJ Kania and interrupted the hearing of a tax matter. The bench heard him and ordered Ms Lone to be produced before the Patiala house courts that very afternoon. Arun Jaitley appearing for her, secured her release. That is how the higher judiciary is expected to deal with citizens’ liberty.
When P Chidambaram’s anticipatory bail was rejected by the Delhi High Court, the CJI did not have time to see that his case was listed. CJI was busy with the Ayodhya matter. That he is now released after 105 days of custody is no solace. Incidentally Chidambaram is a one time junior of KK Vennugopal!
I just cannot believe the way the SC treated the petitions relating to the Central move on J&K. The heart and soul of the matter is the constitutionality of the governments push, endorsed by parliament to nullify Article 370 and split the State into two union territories and keep the entire estate in a locked down condition, with anybody questioning the government move, placed under detention. The parliament is certainly within its powers to do what it did but once the matter was brought to the court it was only imperative that it was taken up with the alacrity it deserves. It is a time sensitive matter. Finally after the State is formally bifurcated, a case of fait accompli stares at us.
The activists involved in the Bhima-Koregao failed to get any relief from the SC. Advocate activists Surendra Gadling, Sudha Bharadwaj lost their freedom much before Chidambaram.
The removal of Alok Verma as the CBI chief came before the court and the court sat on till his tenure came to an end with the matter getting infructuous.
The SC is correctly credited with settling title suit in the Ayodhya matter. After holding the planting of Ram idols to be illegal and demolition in 1992 to be a violent and illegal act, the forces responsible for demolition find themselves in ‘legal possession’ of the land, based upon ‘balance of probabilities. CJI Bobde rightly said that it was the most important case in the world. It was certainly a complicated matter to decide, but the five senior Judges adjudicating the most important case in the world had to decide the matter in a more nuanced manner, that would have lent more credibility and acceptability.
The functioning of the collegium in the last two years has become controversial. Earlier four judges, including retired CJI Gogoi, addressed a press conference holding then CJI not standing up to the executive. The stories of Justice Kureshi and Thaliramani both of whom dealt with Gujarat related cases show that the collegium could not stand up to the powerful executive. I do not know what Fali Nariman has to say now. What a former SC judge of the stature of Justice Madan Lokur tells us, if believed, show an alarming situation. The higher judiciary is certainly getting packed. HR Gokhale (wherever he is), Indira’s Law Minister during emergency must be having the last laugh!
Go to any part of the country the SC and our judges are held in a very high esteem. ‘Judge Saab’ carries more respect than any other professional. The societal expectations from them are very high. The country looks up to them to reverse the malaise but in recent times, a feeling that the SC is not standing up to the robust executive seem to be growing. It’s credibility is at all time low. How it deals with the new citizenship amendment law could change the course of history. We require more HR Khannas.
Now, sadly I realise my friend Sridhar Kamat was spot on.
(The writer is a practising advocate and political analyst)
