Judicial Fortitude: Examining India’s Judiciary in the Face of Adversity

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The India Observer, TIO: OBSERVERS around the world were not necessarily being malicious — with the exception of Winston Churchill — in thinking that India might not last as a democracy for too long after 1947. The Cassandras were wrong, and the new nation’s refurbished state institutions, led by a robust parliament and an enviable judiciary, fortified the trust the masses reposed in the complex multicultural nation state.

Swiftly putting the trauma of partition behind, India’s Nehruvian promise — a gold standard for according impoverished masses dignity and equal rights — melded a Babel-like cluster of linguistic and religious groups into a cozy nation, the opposite of the same differences propelling post-Westphalian Europe into fragmented neighbourhoods. The Indian experiment defied the rule.

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The ideal of a multicultural democracy contended with headwinds but withstood the occasionally bumpy ride, which at one point, in 1975, threatened to derail the political project altogether. The close call was tamed, however, and not for the first time, the initiative to save the day belonged to the masses. Indira Gandhi’s rout was a high point of their prowess, and her chastised return a symbol of their grounded politics.

The journey over the next four decades saw the steady clip beginning to miss the beat, for example, in the loss of the moral compass in Punjab, followed by the horrific pogrom of Sikhs in the heart of Delhi.

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The ground looked fertile for a rightward push, hastened by the loss, no doubt, of India’s economic and political anchor in the USSR. The BJP’s migration from its sullen posturing that feigned to court democracy — which vanished with the fight against Mrs. Gandhi — to become the spitting image of a religio-fascist party gained speed under Prime Minister Narendra Modi.

Diehard optimists would start returning to the old worrying question. Are democracy’s days numbered in India? In a manner of speaking, the institution is too malleable to take a definition. The ayatollahs in Iran would offer one definition and Vladimir Putin another. Donald Trump and Benjamin Netanyahu both claim to fight for democracy, as do Narendra Modi and Rishi Sunak.

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Since independence, the courts have protected but also undermined the people’s will as arbiters of India’s destiny.

In the rubble of torpedoed state institutions that once anchored democracy, the one institution that appeared to be best equipped to vacate right-wing assault was India’s judiciary. Since independence, the courts have protected but also undermined the people’s will as arbiters of India’s destiny. One judge would evict Mrs. Gandhi from office. Another restored her powers as a conflicted prime minister. One believed the temple-mosque dispute in Ayodhya was non-justiciable in India’s secular courts. Another set ended the dispute by apportioning a parcel of the disputed land to a popular deity.

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At today’s critical juncture, when the country’s vital democratic institutions are being rapidly corroded, the onus of becoming the shield to protect the constitution should ideally lie with the judges. They are the ones who can, on their day, stop the dangerous mischief afoot in its tracks. Everything that the opposition rally demanded in Mumbai on Sunday can be addressed by the higher judiciary. The hounding of opposition leaders can be stopped at least during the elections. There’s widespread mistrust of the electronic voting machines. There’s unabated misuse of religion in canvassing votes, which is unconstitutional. Use of money and muscle power, everything can be corrected by the judiciary. But look again.

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The inauguration of the Ram temple in Ayodhya saw 13 former supreme court judges in attendance. They included former chief justices of India V.N. Khare, J.S. Khehar, N.V. Ramana and U.U. Lalit. Among the other judges present were Justices Ashok Bhushan, Adarsh Goel, V. Ramasubrahmaniam, Anil Dave, Vineet Saran, Krishna Murari, Gyan Sudha Mishra, Arun Mishra and Mukundakam Sharma. Ironically, the construction of the temple was cleared by the supreme court in November 2019. The court had termed the razing of the Babri Masjid an “egregious violation of the rule of law”.

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In a more recent sign of the judiciary losing the plot, a high court judge in West Bengal took premature retirement to join the Bharatiya Janata Party. Would he get a ticket to the Lok Sabha elections in the state? Lawyers say justice egregious violation of the rule of law gave dubious verdicts favouring the BJP and targeting the state’s ruling Trinamool Congress. On one occasion, the supreme court reportedly reined in his enthusiasm for unleashing federal police on the state government.

Again, a few short years back, a high court judge in Maharashtra set free right-wing zealots on bail in an alleged lynching of a Muslim man returning from namaz in Pune. There can’t be much quibbling with a judge’s decisions no matter how unconvincing they may be. That’s how it works. However, the judge in this case was quoted as losing it: “The fault of the deceased was only that he belonged to another religion. I consider this factor in favour of the applicants/accused.”

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How was the logic different from the Ayodhya judgement? The justices found the demolition of the mosque a criminal act and went on to award the disputed land to those that had defied their writ. In the bargain, those who undermined the court’s writ went unpunished as if to underscore the lore that nobody destroyed the mosque in Ayodhya. But that’s the BJP’s way of dealing with the apex court. See the grudging way it responded to the court’s orders for the main commercial bank, which works under the government, to furnish details of the money paid through electoral bonds including the parties that got them.

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On another occasion, the chief justice decreed that he (and future chief justices) be part of the selection committee to appoint election commissioners. Mr. Modi responded by changing the law. The prime minister and a cabinet minister who he would name would choose future officials, leaving the opposition and the justices looking stumped. Their lordships may not have much time should they desire to prove Churchill wrong.

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Edited By Adam Rizvi

Curated and Compiled by Humra Kidwai

First Published in Dawn