India has a complicated relationship with its judiciary. On the one side, it’s interpreted as an institution of incomparable panache, an old-worldly charm that still imagines an India of liberal values, quiet resignation and traditional resilience – in other words, an India that is quickly and surely disappearing. Contrary to this, there’s a widespread castigation as well — based on the same premises as the nostalgic laudation — interpreting the judiciary to be a dilapidated, inefficient island in the fast-moving dynamism of the sea.
The judiciary is often seen as the crumbling vestige of an India that Indians are zealous to leave behind, but cannot because the judiciary dispenses justice even though justice is impassably slow, dredged across time by the proverbial taarikh. With over 22 million cases unheard and pending in higher and subordinate courts of law, the judiciary in India — severely understaffed and grossly overworked — has fulfilled this prophecy.
Of frequent reference is also the case of caste. It is argued that the judiciary, populated by as much as 95 percent of its constituency by individuals of the Brahmin caste, is Brahmanical. This criticism resurfaced in the defiance and subsequent punishment of Justice CS Karnan whose persecution, it is said, was about his caste. As a judge of the apex court hearing Hadiya’s case asked what the case had to do with gender, certain formulations cast on the Supreme Court the aspersion of being a benevolent patriarch whose justice was sexual governance.
In the middle of accusations, however, there is a simultaneous recognition that the judiciary may indeed be fraught with shortcomings, but if it were not for its resilient and forthright presence, India would be worse off. This was a resonant sentiment on the promulgation of the Justice KS Puttaswamy vs Union of India judgment – also known as the celebrated judgment upholding privacy as a fundamental right. It is this sentiment that innumerable citizens hold on to as an act of democratic faith.
When, on 12 January, 2018, four prominent judges of the Supreme Court – Ranjan Gogoi, J Chelameswar, Madan B Lokur and Kurian Joseph – held a press conference, the first time in the history of independent India, to declare that democracy in the country is in unprecedented danger, they inspired reminiscence of Justice HR Khanna who, in the ADM Jabalpur vs Shiv Kant Shukla case deciding whether the many arbitrary detentions of the Emergency could be challenged in court, had pleaded constitutional guarantee for life and liberty unconditional to the power of the executive. While drawing on an illustrious history of judicial dissent, they (the four dissenting Supreme Court judges) appealed to the aforesaid democratic faith in the judiciary and affirmed its precarious character, particularly when assaulted by an ascendant executive.
In a crisply worded letter to Chief Justice Dipak Misra, the judges emphasised that while the Chief Justice of India is privileged to determine the roster, this privilege does not accrue to judicial superiority but the need to devise “a disciplined and efficient transaction of business of the court”. He is, then, not the first, but the “first among equals – nothing more or nothing less”. The anxious need to reiterate this, the letter noted, came from the chief justice’s flouting of conventional judicial procedure in assigning cases of far-reaching national significance to “benches ‘of their presence’ with any rationale basis for such assignment”.
When pressed further by some during the press conference, Justice Gogoi confirmed, as was feared, that their own misgivings were informed by the circumstances surrounding the death of BH Loya, the special CBI judge trying the Sohrabuddin case against BJP president Amit Shah. Although the four judges were cautious with what they said, acknowledging that it was towards the reputation of their institution, they remained unforgivable in asserting that if democracy is to survive, India will have to guard its free judiciary.
This impasse in India’s democratic life is not unusual, but its expression has been extraordinary. In the cherished division between the legislature, executive, and the judiciary that India decided to enshrine, the Constituent Assembly was a house divided. Jawaharlal Nehru invoked the proverbial Lakshman rekha, suggesting that “no Supreme Court can make itself a third chamber. No Supreme Court and no judiciary can stand in judgment over the sovereign will of (the) Parliament. If we go wrong here and there, it can point it out, but in the ultimate analysis, where the future of the (country) is concerned, no judiciary can come in the way. And if it comes in the way, ultimately, the whole Constitution is a creature of (the) Parliament.”
Nehru, a constitutionalist in the classical Western tradition, was unstinted in his conviction towards a powerful central executive and a relative disregard for federalist political systems. Its political dangers, that we have come to live, were not lost on him, but never acutely realised. But rarely were thinkers and constitutionalists spared suspicions that the idealism of sharing power between the three estates of democracy will not come to last, that ambitions beyond the constitutionalist will destroy this structure, and with it, the idealism of creating a nation.
BR Ambedkar forewarned that while “the Chief Justice is a very eminent, person, but after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have….”
Although Ambedkar is to have voiced this concern on the issue of who could veto the appointment of judges, it is a concern that has remained. The press conference, then, is to be located in a longue durée of both the executive abuse of power and the awareness that this can be done, and simultaneously, that in a democratic nation it should not be. This democracy, however precarious, has faced only one decisive threat in its postcolonial history, and this threat was defeated. That we do it again is the conviction of the judges, as a second, more insidious authoritarianism attempts to empty the transparency of democratic institutions from within.
It is well-known, with sufficient public interest, that the legislature has, over the years, been rendered beholden to the will of the executive; legislation is now a matter not of debate and discussants with different but ultimately conducive, conceptions of public good, but a programmatic exercise between political parties, mediated by the infamous whip.
Perhaps the castigation of the judiciary for not being of the times is unfounded, for that is precisely its appreciation — that it has, despite the troughs and earthquakes, remained the vestige of a democratic vision that nationalist leaders had imagined for their India: an India they had lived for, but would not live to see.
As the micro-sovereigns of the BJP government attempt to malign the political character and concern of the judiciary, to defend the judiciary is to defend the India that is quickly and surely disappearing, and with whose disappearance we, too, will disappear.