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Last bastion of constitutional order under siege

Nation states are created by individuals but endure on the strength and integrity of their institutions. This is particularly true of democracies, which take generations to set down roots.

Published: 29th April 2018 04:00 AM  |   Last Updated: 28th April 2018 10:21 PM   |  A+A-

Nation states are created by individuals but endure on the strength and integrity of their institutions. This is particularly true of democracies, which take generations to set down roots. That is why democracies need four pillars to sustain their edifice. In today’s India, regrettably, three of those pillars have developed deep fissures which are metastasizing with each successive government and are now threatening the very foundations of the nation—its core constitutional values.

The legislature, dominated by millionaires and people with criminal charges, has completely lost its connection with the citizens, except at the basest level of caste, religion and pelf; Parliament itself has become a Tower of Babel where a budget is passed without a second of debate, where two no-confidence motions can be spurned with Machiavellian disdain. The only thing it can agree on is to periodically increase its members’ allowances. It has not only become superfluous and vestigial, it is now inimical to democracy.

The executive—both political and administrative—has long been riddled with corruption, malfeasance and lack of any accountability. Over the last four years it has assumed even more disturbing traits—it is now an oligarchy of the faithful, raising hosannas to one ideology only, totally insensitive to the travails of the common man. It was never in sync with the average Indian, but at least it made a pretence of caring; the message today is it doesn’t give a damn. The spiralling outbreaks of violence, dharnas, bandhs these last few months are a clear indication of the people’s response. All institutions—the Election Commission, Reserve Bank of India, NHRC, universities and academic bodies, various councils and regulatory bodies—are compromised and no longer enjoy the trust of the country.

The Press—the famous fourth estate—has become the fifth column instead. Most of it, particularly the electronic media, has been suborned, bribed and intimidated by the executive into becoming its co-parcener. Even without the “fake” news these channels cannot be trusted: they are no longer couriers of news but purveyors of views, as dictated by their corporate sponsors or political mentors. There are some exceptions—I will not name them, most of us know who they are—and we cannot but salute them.
The only pillar not yet fractured from top to bottom is the higher judiciary, more specifically the Supreme Court.

It has developed a few cracks of late but its structural integrity is still sound. It is the only institution today that stands between a healthy social order and anarchy. But there is a general perception today that even this last bastion is under siege by the forces seeking to rebuild the nation we inherited in their own image, just as they are seeking to rebuild in Ayodhya. The position of the Supreme Court as the final arbiter of laws and the Constitution is being increasingly challenged—in the court itself, in the PMO and on the streets.

At the vanguard is the Central government itself with a toxic mix of non-cooperation and open defiance of the court, subverting all legalities. It has rejected/delayed appointments to the High Courts for three years now, creating a backlog of more than 400 vacancies; it has disregarded the 2016 order to restrict Aadhaar to subsidy-based schemes and keeps extending them to all areas with impunity. It will not implement the decision on setting up a Cauvery Management Board for purely political reasons. It did nothing to implement the court’s order allowing screening of Padmavat in the four BJP-ruled states. Its worthies continue to make incendiary statements on Ram janmabhoomi even as the matter is sub-judice. It has openly defied the court by announcing that it will bring an ordinance if the SC does not review its order on the SC/ST Act.

The Opposition parties are equally culpable in this concerted attack on the Supreme Court, for it is in the common interest of all political parties to have a weak judiciary. Opportunists all, they have joined hands with the ruling party to oppose the court whenever the latter tries to impose some semblance of law and values in public life—the Padmavat episode, the sealing drive and amendments to the Delhi Master Plan, the Cauvery issue, the most recent order regarding arrests under the SC and ST Atrocities Act, attempts to impeach the Chief Justice of India.

The recent trend of inciting the public to agitate on the streets against the Supreme Court’s orders is even more disturbing.But the higher judiciary cannot escape some blame either. Precisely at the time when it should be circling its wagons against this onslaught and presenting a united front, it appears to be imploding. It is fast losing credibility and the trust of the people. The inflexibility of the CJI in accommodating some of the concerns of the other senior judges, the ill-advised press conference in January, the strange goings on in court in the judge Loya death case, the reluctance to probe charges against other judges, opacity in distribution of work—all these are sapping the court from within, draining it of vitality and the confidence to assert itself. This perhaps is one reason why it is unable to take any contempt action against any government or politician who continues to flout its orders with impunity. Such weakness begets even more defiance—now even senior lawyers have started making statements and insinuations in and out of court openly challenging the judges, something we could not conceive of even ten years ago.

The politicians have smelt blood. To continue Amit Shah’s penchant for animal analogies, the hyenas are hot on the trail of a wounded judiciary.  It is for the higher judiciary to close ranks in the larger interest of a nation that deserves better and assert itself and become more transparent. It has to set its own house in order before it can mandate correctives for others. It has to act now, before Kathua reaches Delhi. Admittedly, the court is far from perfect, but it is the nation’s last bastion; once breached, rule of law will only be a distant memory.

avay shukla

avayshukla@gmail.com



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