Like a breath of fresh air, in the last few months, the judiciary, led by the Supreme Court, appears to have found its independence, writes Ashutosh

“Majoritarian tendencies, whenever and however they arise, must be questioned against the background of our constitutive promise.” These pearls of wisdom are perhaps the most significant words uttered by a sitting judge of the Supreme Court, in the last few years. Justice D Y Chandrachud was speaking at a webinar. He said, “Any semblance of authoritarianism, clampdown on civil liberties, sexism, casteism, otherisation on account of religion or region is upsetting a sacred promise that was made to our ancestors who accepted India as their constitutional republic.“

At a time when serious questions are being raised about the survival of constitutional democracy, when there are clear signs that the Indian republic is under great stress, when there is an attempt to fuse the three arms of the state – the executive, the legislature and the judiciary – into one, when judges are singing paeans to the Prime Minister and judicial actions are called ‘judicial barbarism’, when Parliament is being accused of having been reduced to a mere rubber stamp, when minority rights are being trampled on by the brute majority and religious intolerance is the new normal, such words from a sitting judge need deeper introspection. Before Justice Chandrachud, Chief Justice N V Ramana had also commented that the mere right to change the ruler once every five years, by itself need not be a guarantee against tyranny.

Constitutional crisis

To assume that words like ‘majoritarianism’, ‘authoritarianism’ and ‘tyranny’, are loosely used by these two without any socio-political context would be a gross misrepresentation of the reality existing in present day India. The country is passing through a serious constitutional crisis and unfortunately, the Supreme Court too has made contributions in that direction. The Supreme Court, which is ordained with the power to be the guardian of the Constitution, was seen surrendering its sublime authority to adjudicate in favour of the citizens and developing an adulatory attitude towards the government led by Narendra Modi.

It was accused of not fighting for the preservation of the Constitution but for its own individual survival. At a time when judges were expected to fight for the rights of the individuals, it discovered innate virtues in the executive and found qualities like “versatile genius” in the Prime Minister either for post-retirement benefits or out of fear.

It’s not as though the country is facing such a crisis for the first time. In the 70s, Mrs Gandhi, whose progeny are today facing the brunt of the constitutional catastrophe, in her acute hunger for power, did hijack democracy and her cabinet colleagues deliberately built a rationale to justify her acts. Mohan Kumaramangalam, a Communist-turned-Congressman was the architect of the anti-democratic narrative.

Committed judiciary

He openly advocated that for social revolution to succeed, the judiciary should not act as a hindrance, which in reality was a call for a committed judiciary. In an attempt to have the judiciary of her liking Mrs Gandhi superseded three senior judges, to appoint Justice A N Ray as the Chief Justice of India. The seniority of Justices Shelat, Hegde and Justice Grover was ignored. Justice Khanna commented, “Mrs Gandhi has stuck a grievous blow to the independence of the judiciary."

Jayaprakash Narayan, the architect of the JP movement, had severely criticised the government then. He had said, “Were the appointment of the Chief Justice to remain in the hands of the Prime Minister, then the highest judicial institution of this country cannot but become a creature of the government of the day.” Mrs Gandhi’s reply to JP should sound familiar in the present political ecosystem. She said, “There has been no question of the executive subordinating the judiciary. “

But the reality was stark. It was naive to imagine that she was misguided by her advisers. She was a very strong leader with an authoritarian streak. No minister would have said what Kumaramangalam said about the choice of the Supreme Court judges. He said, “We will take the forward-looking judge and not the backward-looking judge.” Till then, it was assumed, as enumerated in the law commission report that ‘a Chief Justice must be a judge of ability and experience ... a competent administrator... a shrewd judge of men ... and above all, a person of sturdy independence and towering personality who would ... be a watchdog of the independence of the judiciary.’

Congress hand

Congress party leaders then said that the Congress had a commitment to the people to unleash the process of social transformation and institutions, including the judiciary, should help in the endeavour. Mrs Gandhi, in her fight vis a vis the Congress syndicate, had wilfully taken a left turn and to hide her political ambition, she gave an ideological colour to the factional fight. She became so insecure that in the words of Granville Austin, “She tamed Parliament, power moved to the cabinet, thence from the timid body to the Prime Minister and her secretariat and ultimately to the coterie around Mrs Gandhi.”

Mrs Gandhi was not a committed Communist; for her, ideology was a smoke screen, but for the present regime, Hindutva is a commitment and Hindu Rashtra is the normative goal. It’s a government that believes in majoritarian politics; centralisation of power is the cardinal principle around which an entire gamut of governance is woven. In the ideological scheme of things, the judiciary has to play a vital role. It is up to them to choose if they want to be co-opted or coerced. A few joined the bandwagon and many others surrendered out of fear.

To begin with, Justice T S Thakur refused to be co-opted but the same couldn’t be said about others who succeeded him. The situation became so precarious that during Dipak Misra’s tenure as Chief Justice, four seniormost judges had to call a press conference to say that ‘democracy is in danger’ and that the independence of the judiciary was being compromised. Many judgments which favoured the government could be cited, and the opposition and civil society were pained to say that the judiciary and judges had lost their spine. But like a breath of fresh air, in the last few months, the judiciary, led by the Supreme Court, appears to have found its independence, grilling the government, criticising it for its partisanship and policy paralysis.

Delhi HC's landmark judgment

During the second wave of corona, the Supreme Court forced the Centre to come out with a coherent vaccine policy. On the issue of wanton misuse of sedition laws, the Supreme Court has not only warned its executioners but also hinted that it might be compelled to remove such laws from the law books. The Delhi High Court, in its landmark judgment giving bail to social activists Natasha Narwal, Devangana Kalita and Asif Iqbal said, “... it seems that in its anxiety to suppress dissent, in the mind of the state, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred.”

Kanwar Yatra

And now, the Supreme Court has forced the UP government to cancel the Kanwar Yatra. This was the government, which, despite the Uttarakhand high court’s orders and observations about holy congregations, was hellbent on allowing the Kanwars to walk with holy water. Justice Ramana should be given credit.

Today, serious questions are being asked in international fora about Indian democracy. India’s image as a vibrant democracy has taken a severe hit and there is anxiety whether India can survive as a democratic nation, it is important that the judiciary has discovered its soul and is making the right noises. Majoritarianism is not a mere word, it’s an ethos for authoritarianism. Our great freedom fighters did not fight for the freedom of one particular community but for all who chose to live in this country after Partition.

For democracy to be vibrant, in the words of Justice Ramana, the fight against tyranny should go on all the time. Every effort to stifle democracy should be fought. We must not forget what Dr Babasaheb Ambedkar has said, “Bhakti, or what may be called the path of devotion or hero worship, plays a part in its (India) politics unequalled in magnitude by the part it plays in the politics of any other country in the world ... in politics, Bhakti is a sure road to degradation and to eventual dictatorship.”

The writer is an author and Editor,

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