Law minister Kiren Rijiju’s recent comments have been described by many well-qualified practitioners and scholars of law as ‘pathetic’. Without getting into the partisan slanging match, one can only add that Rijiju seems to be making up in pugnacity what he might be lacking in experience in higher judiciary, either as a member of the bar or Bench. He has, with great enthusiasm and little discretion, suggested what the Supreme Court should do—what kinds of frivolous litigations it should eschew, etc. He has added ominously that justice should be provided to only the deserving. Who is to decide all this?
To be fair, the attempts to put in place a ‘committed’ judiciary have not been started by the present government. It was former Prime Minister Indira Gandhi and her coterie of advisors—some of them eminent lawyers, who had come up with this idea. Again, it was the majority of the Supreme Court judges—with rare exceptions—who failed miserably to remain true to their oath of office to protect the Constitution. Justice PN Bhagwati couldn’t resist joining the bandwagon of panegyrists who equated Mrs G with India.
The ADM Jabalpur Case (a controversial judgment, ruling that a person’s right to not be unlawfully detained can be suspended), decided during the dark days of Emergency, will remain a blot on our democracy. Only Justice HR Khanna pushed back, showed his spine and paid the price. Since then, much before Narendra Modi assumed office, the reluctance of the court to take on an executive trampling on citizens rights and constitutional provisions, working at the behest of elected representatives commanding brute majority has led to disastrous consequences.
Words like ‘miscarriage of justice’ seldom mean the same thing to victims and perpetrators of crime. Matters are muddied further when mythic metaphors like ‘Lakshman Rekha’ are bandied. Whenever we are reminded of ‘judicial overreach’ or populist ‘activism’, one can’t help recalling instances when the legislature has bristled, spoiling to jump in a confrontation with the custodians of our Constitution. Same applies to judges taking long vacations and observing short working hours following it.
Parliament and state legislatures are not exactly famous for their productive sessions. Irreverent analysts have been tempted to quip that India has an adjourned democracy, referring to frequent adjournments due to boisterous interruption by esteemed members in total disregard of parliamentary practice and conventions. Such conduct cuts across party lines, and presiding officers appear helpless. Another problem is the criminalisation of politics, resulting in a conflict of interest between tainted/convicted representatives of the people and judges who insist in following an opaque collegium system to appoint, promote and self-discipline errant brother/sister judges.
Unfortunately, judges at the pinnacle have often displayed weak knees and a pliable spine. The law of contempt has armed them with a weapon that can be unleashed against anyone. Nor have all the learned lordships been able to resist the temptation to sit as judges in their own cause, flouting well-established principles of natural justice. Succumbing to what appears as sinecure, in the immediate aftermath of retirement has also raised eyebrows. Whimsical transfers made, cancelled, promotions granted or denied are distressingly routine. No side waging a war of words is free from blemish. But when all is said, it remains almost cast in stone that ultimately our Constitution is to be interpreted by the Supreme Court. It alone can declare a law passed by Parliament or an Assembly ultra vires the Constitution. Its judgments are the law of the land till changed. Ironically, the changed law will also have to pass the test of not violating the basic structure of the Constitution.
It has been said before. The Supreme Court may be supreme, but it’s not infallible. So where does that leave us? This is a question that concerns not only legal luminaries, but all citizens of the world’s largest—and, now also claimed to be the oldest—democracy. It’s literally a matter of life and death for those whose final appeals are pending in the apex court and for all whose fundamental right to liberty granted in the Constitution is threatened by the State (read, the executive), which appears increasingly determined to challenge the concept of separation of powers and independence of judiciary. Theoretically, the executive works under the supervision and control of the legislature—elected representatives of the people embodying their sovereignty. But, as known to all, theory is far removed from practice and reality of life.
This is what has triggered the distressing tug of war we are witnessing at present between those who claim to represent us—‘the people of India’—and those entrusted with the task of keeping a check on those who refuse to accept any check and balances.
Pushpesh Pant
Former professor, Jawaharlal Nehru University
pushpeshpant@gmail.com