Stooping to conquer or flattering to deceive?
The judiciary has never been an obstacle to the ruling party's rampaging depredation of our social, constitutional, legal and institutional landscape
If you've been a keen observer of public discourse in India, as I have been for some years now, you are probably immune to the bizarre and outlandish statements made by the worthies holding public office.
Like the Scowling Sherpa's revelation that "there is too much democracy" in India, or a minister in Davos claiming that high unemployment is indicative of increasing self employment, or the Supreme Leader's assertion that not one inch of Indian land has been occupied by the Chinese, or a minister for human resources in NDA-I debunking Darwin's theory by maintaining that none of his ancestors ever saw an ape turning into a homo sapiens.
We are, of course, the swine who should be grateful for such pearls of wisdom, but two recent pearls, cultured in our very own fascist laboratory, have taken even my post-Diwali asthmatic breath away.
Arguing for the government in the Supreme Court, the attorney-general made two astounding averments: one, that the voter does not have any right to know how his or her vote has been recorded or counted, and two, that the public does not have the right to know who has contributed how much to which political party.
The first statement was intended to counter the very legitimate demand for a more extensive VVPAT verification of votes cast in EVMs, the second was in response to the challenge to the electoral bonds, which have effectively become the BJP's private ATM.
...the government is actually saying: we will have our way, we don't give a tinker's curse for what the citizenry thinks or what the court decides; we have the majority in Parliament and can pass any ordinance or bill we are inclined to
We have never been in doubt that these statements are a faithful expression of the BJP's private views, but the sheer brazenness of declaring it openly — and that too in court — is mind-blowing. It is beyond arrogance and hubris, it shows utter contempt for the public, the Constitution and, (dare I say it?) even for the highest court in the land.
Translated into language which we porkers can understand, the government is actually saying: we will have our way, we don't give a tinker's curse for what the citizenry thinks or what the court decides; we have the majority in Parliament (even if Mahua Moitra and her Louis Vuitton bags are not expelled) and can pass any ordinance or bill we are inclined to.
Misplaced confidence and hubris, did you say? You would be wrong, dear reader, because past events have proved that they are right. The judiciary has never been an obstacle to the ruling party's rampaging depredation of our social, constitutional, legal and institutional landscape. One cannot but help feeling that the government's impudence is due in no small measure to the court's accommodating and obliging behaviour.
The Supreme Court never fails to disappoint, and has done it again in two recent judgments: on the petition for legalising same sex marriages, and on Delhi deputy chief minister Manish Sisodia's application for bail. These petitions had been vehemently opposed by the government. Both were dismissed, quite against the run of play.
The electoral bonds issue was taken up after five years, the delay allowing the BJP to mop up almost Rs 5,500 crore, more than that received by all other parties combined
Both judgments came as a surprise, not only because of the inherent contradictions in the judgments themselves, but also because in comments leading up to the judgments, the court had appeared to favour the petitioners' cause.
The order in the same sex marriage case is retrogressive and mired in a medieval mindset, which exposes the court's disconnect with a rapidly changing social order. By refusing to legalise same sex marriages, or allowing same sex couples to adopt or giving them civil rights as a couple, the court may have warmed the cockles of the BJP/RSS heart, but it has also given a thumbs up to obscurantist forces.
By directing that the government set up a committee under the cabinet secretary to examine the matter to confer more rights on LGBT and queer communities, the court is only displaying its naivete, or deliberately deluding itself: does it really expect an officer who is on extension in service and who has been party to every unilateral and illiberal decision taken by the present regime, to propose any expansion of the rights of this section of society, something this government is vociferously opposed to?
The logic in the Manish Sisodia case is even more difficult to comprehend. In the course of arguments leading up to the judgment, the court had time and again castigated the prosecution for lack of any evidence against the accused. It had even gone so far as to say that there was no money trail to link Sisodia to any bribe, and that the ED's case would collapse in two minutes during trial.
And yet, it denied him bail and sent him back to jail. Such a vacillating attitude can only encourage the government to lock up more people for months, confident that the courts will not enlarge them on bail, evidence or no evidence. Clearly, this order is based more on presumption than on solid evidence.
The electoral bonds issue was taken up after five years, the delay allowing the BJP to mop up almost Rs 5,500 crore, more than that received by all other parties combined. The court has now concluded the hearings and reserved its order more than two weeks ago, again giving the BJP the opportunity to open the window for another tranche this week.
This will enable it to secure all the donations it needs for the 2024 elections: whatever the court now decides will effectively be irrelevant for the coming general elections, and after that, who knows — we're all dead in the long run, in any case.
In the Maharashtra disqualification case between the two Shiv Sena factions, the speaker continues to ignore, if not defy, the SC's repeated orders for a quick decision. The speaker has been given such a long rope that he is using it to strangle whatever vestiges of democracy remains in the state.
The Article 370 case similarly hangs in limbo, the orders reserved, and democracy continues to elude Jammu and Kashmir. The Bilkis Bano case has disappeared from the radar, if not the court's registry. Whatever happened to the Pegasus Committee report, or SEBI's investigation into the charges against the Adani conglomerate?
With every day's delay in deciding such crucial cases, or in delivering reserved orders, the status quo (which can only favour the government of the day) becomes a fait accompli, all the more difficult to reverse. It emboldens the government to continue with its bulldozer tactics, and to take the court for granted.
Which is why the attorney-general can make the kind of statements he does and continue cocking a snook, as it were, at the court. Earlier this month, he even cautioned the court (was it a veiled warning?) not to cross its limits, when the CJI fixed 31 December as the deadline for the Maharashtra speaker to decide the MLA disqualification case!
It may be that the court wishes to avoid a confrontation with the executive, and therefore "urges" when it should direct, or "requests" when it should mandate, or "persuades" when it should command. But such a timid approach is not working; it takes two to avoid a clash, and this government is perpetually in adversarial mode. Moreover, it also reduces the majesty of the law and dilutes the credibility of legal institutions in the eyes of the citizenry.
What we need is for the court to administer the law without fear or favour, to practice within the court what it preaches outside it, at seminars, conventions and in keynote speeches. We need less rhetoric, obiter dicta, and moral grandstanding from the judiciary and more concern for our foundational freedoms and rights, stern messaging to the government, and imposition of consequences for defying orders.
"Stooping to conquer" may be an interesting phrase for an Oliver Goldsmith play, but entirely inappropriate for our current political environment; the phrase "flattering to deceive" may describe it better, don't you think?
Avay Shukla is a retired IAS officer and author of The Deputy Commissioner’s Dog and Other Colleagues. He blogs at avayshukla.blogspot.com