What does this Government want? A Constitution-mukt Bharat?

The coming months will be a testing time for the judiciary when it will have to decide if it wants to do Suryanamaskar to the Executive

Photo by Kunal Patil/Hindustan Times via Getty Images
Photo by Kunal Patil/Hindustan Times via Getty Images
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Indira Jaising

Where do we begin while evaluating the judiciary? When did the judiciary reach a crossroad?

The judiciary in this country is more than a century old, many of our High Courts have celebrated their centenary years with great pomp and show, most recently the Allahabad High Court, an event attended by the Chief Minister the Prime Minister and the Chief Justice of India. But perhaps, that is where the problem begins, a century ago.

The judiciary in this country has not been able to shed its colonial legacy and instead carried it forward to the post-colonial period. Sometimes in court one gets the impression that the Constitution has been skipped and inspiration for modern day problems is sought from religious texts which go back 1400 years as most recently done in the triple talaq case.

It was seriously suggested that personal laws and policy which govern family matters such as marriage and divorce, should not be tested on the touch stone of the Constitution of India, but rather due deference should be shown to the customs and practices of the ancient past. This was a throwback to the 1772 Regulation of the British administration Its origins are neither religious nor cultural but based on the policy of divide and rule, a purely political object. I, therefore, choose to fix the crossroad in 2017, 67 years from 1950, when the Constitution came into force.

An evaluation of the judiciary and its functioning must therefore be made on whether it has been able to further the goals of freedom movement which brought into being the Constitution. Have we been able to evolve an indigenous jurisprudence which is suited to the genius of our country? After all, the Constitutional document is one which every generation of Indians must be able to interpret according to their own vision of progress and justice.

Midway in the life of our young country, we had the ADM Jabalpur case which held that the right to life could be suspended during the emergency, for the reason that it was a gift of the State and not something inherent to being human.

It took a political revolution to undo this judgement but the Supreme Court itself has not as yet reversed the proposition that life is not a gift of the State and hence the juridical core of the judgment remains intact. Those who wrote the judgment have at some point in their retirement apologised for what they did but the judgment itself remains a standing monument to deference by the judiciary to the executive will. In fact one of the judges wrote “Counsel after counsel expressed the fear that during the emergency, the executive may whip and strip and starve the detenu and if this be our judgment, even shoot him down. Such misdeeds have not tarnished the record of Free India and I have a diamond-bright, diamond-hard hope that such things will never come to pass.

The big question in my mind is, have we learnt the lessons of ADM Jabalpur case or are we still in the mood to do Surayanamaskar to the executive? Today more than ever before, the judiciary needs to shed this attitude.

The separation of powers was intended to protect the citizen against the excesses to the executive and the legislature, hence the need for independence of the judiciary. The judiciary is indeed independent from the executive but not from the ideals of the freedom movement and the Constitution itself. Every decision of theirs must reflect the inclusive ideal of the movement and the aspiration or equality and liberty. One look at the all-male Supreme Court (save one woman, who only proves the point) should indicate the need for an inclusive approach.

It is the Keshavananda Bharati judgment which will go down in history as Indian’s unique contribution to world jurisprudence. The Court held that the basic features of the Constitution are beyond the reach of Parliament to amend. These are Secularism, democracy, federalism, liberty and equality. This judgment goes beyond the text of the Constitution and is based on what has come to be known as the “universal judicial conscience”. India is part of the global community and has signed several Human Rights Conventions which embody this universal conscience. It is therefore this moral compass that must guide the decisions of the court in times to come.

The Keshavananda Bharati Judgment could provide the basis for resisting an encroachment into any of the basic features of the Constitution. A majoritarian government must be warned that democracy cannot be equated with the number game in Parliament. We expect to see judicial recognition of the fact that Freedom of the Press and the Right to Life including the Right to Privacy, are necessary pillars of a functioning democracy. We have seen the emergence of non-state actors, vigilante groups, gau rakshaks destroy blatantly and in full view of the public the right to life of members of the minority community.

The challenge before the courts will be to bring these non-state actors under the discipline of fundamental rights. Will the courts hold a government which behaves like a bystander to its obligation to ‘respect, protect and fulfil’ the fundamental rights of its citizens, accountable? On the other hand, NGOs who resist the erosion of the Rule of Law and stand by the historically oppressed are persecuted for their conscientious objection to unlawful acts of the government. This is convenient targeting of all in the name of maintaining Rule of Law.

Conscientious dissenters have joined the ranks of the minorities and now need the protection of non-discrimination based on political opinion. It seems to me what this government wants is a Constitution-free Bharat.

Given that Yogi Adityanath, a priest, has been appointed a Chief minister, the Courts will also have to decide whether such an appointment is consistent with secularism. Can a priest who swears allegiance to a religious denomination also swear an oath of allegiance to the Constitution?

Given his past involvement in the Ramjanma Bhoomi issue, can his Government be expected to act impartially in that and other similar disputes involving other religious groups? I think not. Acting with affection towards his Math and ill-will towards other religious groups will be a clear violation of this oath of office as Chief Minister and present a conflict of interest.

Is there a fundamental right to privacy, or as the Attorney General contends, there is none? Could demonetisation have been done by an executive order and not by authority of law? These are some of the issues that the judiciary at crossroads will have to contend with in the coming months.

As of now, putting these issues in cold storage and fast tracking triple talaq has sent the wrong message to the people of the country and in today’s world, perceptions matter for legitimacy of the judiciary. I hope I am wrong but the Supreme Court seems to have got its priorities wrong. There will always be competing claims for court time, it is here that the leadership of the Court matters.

These are some of the issues which are likely to arise in the future for our courts to decide. The judiciary at crossroads will be tested on these touch stones.

The challenge that India and its judiciary faces today is whether the Constitution will remain a document of shared destiny for all its peoples. The historic role of judiciary will be not just to protect the text of that glorious document, the Constitution, but also the unseen and unheard silences of the Constitution, as they did in the Keshvanand Bharati case.

For this to happen, judiciary does not have to either depend on or look upon the State for inspiration. Nor does it have to seek inspiration from the hoary past, nor from religious texts nor form the jurisprudence of the British Era. Instead, it needs to rely on what Judge Cançado Trindade, a member of the ICJ who sat on the case of India Vs. Pakistan called “Universal Judicial Consensus”.

India is too important a country to be treated as a banana republic by some its own people. Historically if India had and still has anything to offer to the world, it is its moral leadership. It is that very moral leadership which seems in peril today. It is time for the judiciary to remind the county of that moral leadership.

The author is a senior advocate of the Supreme Court

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