The state of rule of law in our country was laid bare recently by Parkash Singh Badal, the Chief Minister of Punjab, who defied a Supreme Court ruling over water sharing with neighbouring Haryana, saying he would not even let a “drop of water be taken out”. Last month, it was none other than the Chief Minister of Maharashtra, Devendra Fadnavis, in the matter of the ‘ban’ imposed on Karan Johar’s film, Ae Dil Hai Mushkil.
It is now clear that he actually colluded with the Maharashtra Navnirman Sena chief to extort `5 crores from the producer. He may call himself a “mediator”, but that is exactly what middlemen and brokers are, and if they “mediate” in criminal matters such as demands for “protection money” they are accomplices to the crime. Fadnavis may think his action was a political master-stroke — he has raised the profile of MNS and thus damaged the “Marathimanoos” base of his disgruntled bed-fellow, the Shiv Sena — but in the eyes of the law he has committed a crime. But this is not a solitary instance.
The discerning observer could not have failed to observe that over the last two years or so various Chief Ministers have demonstrated that they don’t give two figs for the law or even for its prime enforcer, the Supreme Court, so long as they can gain political capital out of their disregard or defiance. Fadnavis himself appears to be a serial offender. He is embroiled in a two year battle with the Supreme Court over his pet project: a ban on Mumbai’s dance bars.
The Court has struck down his legislation at least four times as unconstitutional, but every time he tweaks it again and reimposes it. Take that savant of abstinence, Nitish Kumar of Bihar. He has made it his life’s mission to take on those who drink, leaving those who murder, rape and kidnap — lesser evils in his eyes — to ply their trade undisturbed. He enforced his zeal through a law that belonged to the dark ages, till it was struck down by the High Court last month.
Undaunted, he has now notified a new law with even more draconian provisions! The Karnataka Chief Minister has been defying the Supreme Court for over a month now and has consistently refused to release any Cauvery waters for Tamil Nadu. I have lost count of the number of times the court has ordered release of the waters. Siddaramaiah has a template response: “we have no extra water”, call a special session of the Vidhan Sabha and file a review petition.
The Centre is doing much the same thing by refusing to appoint judges to the higher judiciary in a sulking fit because the Supreme Court had struck down the NJAC Bill. It is holding the entire justice system to ransom, but the court appears to be doing nothing other than holding out dire threats.
This contagion is spreading beyond government functionaries. The All India Muslim Personal Law Board has warned the Supreme Court to keep off its community’s personal laws. The Shiv Sena has “advised” the court to respect Hindu sentiments for the cow.
The Board of Control for Cricket in India (BCCI) has rejected the Lodha Committee’s recommendations (endorsed by the SC) and refused to give an undertaking that it will implement them. It has called the court’s bluff and had even threatened to cancel the series against England. These are extremely damaging portents.
With a deeply fractured society and an irresponsible polity, the only thing between us and anarchy is the thin membrane of the law. If this too is rent by repeated assaults, especially by those who take public office swearing to protect it, then we shall not survive long as a democracy.
The major culpability lies with our elected leaders who will sacrifice all at the altar of votes. But I’m afraid some responsibility has to be accepted by our judiciary too. It appears to be overawed by the political elite and is hesitant to take action against them, a process that started with Kalyan Singh, the then CM of UP, being let off in the Babri Masjid case.
Contempt notices are issued liberally to the lesser mortals but not to ministers. Sidaramaiah should have been hauled up for contempt by now and his government dismissed. Ditto for the duet being sung by the Badals, but it appears that the Supreme Court, while “willing to wound” is “ afraid to strike”. The court has to reaffirm the unquestioned majesty of the law in unequivocal terms before such defiance becomes the norm. It should advise the President that the constitutional machinery in both states has collapsed and their governments should be dismissed. Secondly, the judiciary is overextending itself by venturing into areas that should not concern it, thus exposing its flanks to criticism and getting embroiled in controversies.
Prime examples are the BCCI and Uniform Civil Code cases. The first involves no fundamental or constitutional rights; it is the job of the government to regulate sports bodies. The second, though an ideal objective, is more a social than a legal issue. Reforming religions is best left to their adherents and to public opinion. Nowhere in history has a major religion been reformed legally.
The subject is so charged with political and religious implications that the judiciary would be well advised to steer clear of it. By proactively entering into these arenas the courts are letting the governments off the hook, because it is the latter’s prime responsibility to sort out these issues. It also invites defiance of its orders, and with every act of defiance its credibility and authority get diluted. There is one principle of management which the higher judiciary would do well to consider: One’s area of concern should never exceed one’s area of influence.
AVAY SHUKLA served in the IAS for 35 years and retired as Additional Chief Secretary of Himachal Pradesh
Email: avayshukla@gmail.com