There is something about impending retirement that suddenly makes even a reticent man extremely voluble. What else explains the most honourable and learned Lordships’ irrepressible urge to expound on the Constitution and fundamental rights of citizens that the state appears increasingly prone to trample? One is surprised that the same dignitaries have maintained a thundering silence about these when sitting on the Bench, pronouncing judgements on cases.
Observations during the hearing are not the same. The wide gap between what is said and what is done in the course of justice has become so glaring that many students of the Constitution have begun to wonder whether the concept of separation of powers has been totally eroded in India.
There are strong statements made in defence of the independence of the judiciary fearless and free that is essential to preserve democracy, but the practice doesn’t seem to match the preaching. The entire jurisprudence of bail has been altered, the innovative PIL has become all but extinct, and one can’t always blame the executive or the legislature for subverting the institution. There appears an inexplicable reluctance to push back and defend its turf by the judiciary.
Some judgements delivered on the day of retirement deliver a powerful parting kick, leaving the petitioners or appellants dazed and maimed. Much too easily has the Supreme Court accepted the ‘logic’ of draconian laws passed to protect the security and integrity of the state, passing the burden of proving innocence to the accused who may be arrested without a warrant and kept in custody without the right to bail for a prolonged period during the investigation.
The process itself has become the punishment. It has been observed that the situation is reminiscent of Kafka’s Trial. Kafkaesque is not an adjective that is part of the active vocabulary of most Indians. But the general drift becomes clear when the old satirical play Andher Nagari is mentioned.
No one is talking of judicial overreach these days. The repetition of the magic mantra Lakshman Rekha or Maryada seems to have the desired effect. The appointments to the higher judiciary are put on hold, and the collegium’s recommendations are held in abeyance (even when reiterated) and selectively accepted. The point is effectively made that it is Parliament that is supreme.
Parliament may claim supremacy, but this doesn’t make it infallible or flawless. True, it comprises elected representatives of the people and the executive is responsible for it, but in practice, the lines have been badly blurred here also. The arbitrary application of rules of procedure, decline of the committee system, and disruptions in the proceedings in the House have had the effect of ‘washing out the entire sessions’ or at least curtailing the time for debates and deliberations.
Both the ruling party and the Opposition in disarray blame each other for the sad state of affairs. The tragedy is that personalities matter more than parties in contemporary India and the egos of individuals have rendered ideologies inert. Insults and abuses are exchanged routinely replacing thrust and parry of logical arguments and repartee deflating egos.
Like contempt of court, breach of parliamentary privilege are threats to make a critic cower. The epidemic of hurt religious sentiments is threatening to become deadlier than the coronavirus. We continue to be a secular country, a federal republic, and the largest electoral democracy in the world, but large segments of the population live under the shadow of fear of arrest or lynching for what a political opponent in power or a vigilante run amok may interpret as blasphemous.
We have deified our elected leaders and any criticism, however legitimate, can be punished as less majesty. We have, as a people, become very painfully intolerant, and the conduct of investigative agencies is only reflecting this.
Before we conclude, it’s necessary to clarify a few things. The Enforcement Directorate was neither created nor empowered by the present government. It was unleashed to tame opponents by the gentle folk who were in power in the UPA government. It’s not necessary to blame Indira Gandhi or Jawaharlal Nehru for all that is wrong around us.
The quintessential good man Dr Manmohan Singh was desperate to maintain a distance of more than an arm’s length from all sordid decisions that could stain his reputation, and let his Cabinet colleagues play dangerous games. It’s the Congress-led UPA that fattened the Frankenstein’s monsters that are threatening to become its nemesis. Sonia Gandhi’s dynastic ambitions and imperial style of operations through coteries are what started the rot.
If the entire Opposition is in a state of shock, it’s because there are many skeletons in many cupboards. It’s not only the Gandhis that refuse to fade away. Sharad Pawar keeps posturing as if he is still the Strong Man of Maharashtra, the senior statesman in Indian politics. The presidential and vice-presidential elections have exposed the hollowness of men and women of straw. We live in dark times indeed, but the fault lies not in our stars but in us.
Pushpesh Pant
pushpeshpant@gmail.com
Former professor, Jawaharlal Nehru University