CONFLICT BETWEEN LEGISLATORS AND JUDICIARY
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Copyright Bharat Gupt 2008 – all rights reserved
Having entered the twenty-first century India should remain under no illusion that legislative inactivism shall be the order of the day in our populist democracy. The root cause behind this inactivism is the populism practiced mindlessly by our legislators. To appease his prospective voters an average member of the Indi
an parliament, a state assembly legislator, a city corporation member, or even a village council (graama panchaayat
) member, does not hesitate in making mutually contradictory concessions to different sections of his voters. He will promise raised fares to taxi associations and no increase in fares to the commuters at the same time.
He will assure tax-cuts by reducing government expenditure, and at the same time promise to raise salaries and make fresh appointments in bureaucracy. He will show the lure of higher quality of education but in actual practice, flood the universities with excessi
ve entrants and politicize student cadres. He will make new roads but jam them with encroachers and illegal constructions.
The list is unending. After a few decades of placation without policy
, the contradictory pulls have brought an end to both development and governance. The frustrated public has turned to the courts for mandatory orders to be given to governments to sort out the mess. This aweful decline in the efficiency of the legislators has put them under the scrutiny of the judiciary and challenged their supremacy that had stayed uncontested under the socialist system practiced from Nehru and his dynasty. Several cliques of functionaries, dependants and parasites under socialist raj have bolstered the pri
macy of the legislators now in question. It is also clear that the political elite have under their patronage vociferous apologists, that huge class of mediocrities who secure positions and favours which they cannot secure through fair means of promotion, and who continue to support the myth of the supremacy of the Parliamentarians.
Judiciary versus Legislature
After protests from politicians against some judicial announcements, and their attempt to ridicule the assertiveness of judiciary as “judicial activism”, for some time politicians as a class had decided to lie low. The judiciary is winning popular appreciation of their role. The people of India, unlike her “committed” (read politically partisan) intellectuals, are quite sure that on major and minor issues alike, legislators of all levels are incapable of evolving a common agenda for solving basic problems. It is not that the common man is expecting the Parliament to thrash out contentious issues complicated by years of politicking such as the dispute on the Ayodhya si
te of Ram Mandir/Babri Masjid, or the area and pace of economic reforms or the implementation of affirmative action along the caste lines. The Ayodhya tangle has already been entrusted to adjudication, and the issue of the creamy layer appropriating the benefits of reservation or affirmative action will have to be soon decided by the Courts too. It is not only bigger issues like taxing agricultural income, or updating rent laws, or a common civil code that the judiciary would have to adjudicate when matters are brought before it in the near future, but it is the small civic rights that will have to be clarified by the Courts and their implementation ordered. Now there is a total inability among legislators in taking and implementing policy decisions for running daily administration resulting in crisis after crisis which the judiciary has to diffuse.
Are Legislators Supreme?
Apologists for the legislators are never tired of pointing out that the Constitution has spelt the functions of the judiciary, the legislature and the executive very clearly and the lines demarcated for their territories are also well marked but in actual practice the legislators are getting increasingly impatient with the judiciary. They have launched several verbal attacks on the judiciary and one wonders if these are only a prolegomena to the day when hordes of party workers of all shades shall shout slogans in front of the Supreme Court against the judiciary of the land, a way they adopted to ruin the universi
ties and business corporations in the heyday of socialism.
Now even the Prime Minister, Manmohan Singh and Speaker of the Lok Sabha, Somnath Chatterjee have advised the judiciary not to transgress their specified area and lamented their ‘interference’ into policy making by legislatures and rules of governance by the administrators. As the Press Trust of India reported through several newspapers on 8.4.07 in a public lecture there was a virtual debate between the Chief Justice of the Supreme Court and the Prime Minister. Justice Balakrishnan observed: “The application to judici
al review to determine constitutionality of the legislation and to review the executive decision sometimes creates tension between the judge and the legislative and the executive branch. Such tension is natural and to some extent desirable.” Noting that the judiciary’s independence was essential to the rule of law, Balakrishnan said, “judicial review was an extraordinary legal invention that seems deceptively simple, but it is one of the most baffling of legal devices. Sometimes it is described mistakenly as a veto power over legislation.” In his retort the PM said, “The dividing line between the judicial activism and judicial overreach is a thin one . . . A takeover of the functions of another organ may, at times, become a case of over-reach.” Like most members of his class he maintained “that the judiciary’s primary obligation was to enforce the rule of law, uphold the Constitution and enforce the discharge of obligations by any authority of the state.” In plain words, judges should be content with enforcing whatever laws the legislators make in their wisdom or lack thereof and not try to “substitute its power of mandamus to take-over the functions of another organ, meaning the legislature and executive.” And finally the stock argument came from the PM. The judiciary can deal with limi
ted number of matters and has too much on hands already hence they should not try to review the decisions of the politicians and officials. “The courts do not possess a magic wand which they can wave to wipe out the huge pendency of cases, nor can they afford to ignore the instances of injustices and illegalities because of the huge arrears of cases already pending with them. If the courts start doing that, it would be endangering the credibility of the courts and the tremendous confidence they still enjoy from the common man.” As if there is somebody else to be blamed except the government for not appointing sufficient number of judges! Of course, this debate was taking place at a time when several legislations had been struck down by the apex court, the latest bei
ng the constitutional validity of Schedule Nine and the stay granted on implementing the 27 per cent quota for OBCs in elite educational institutions. But there is more to it. The truth is that the legislators are feeling invaded. The brief of the PM was further argued in a speech by the Speaker of the Lower House of the Indian Parliament, singing the same tune. While conceding the right of the judiciary to review laws he reiterated the platitude that they cannot frame them. “The framers of our Constitution took infinite care to provide for an independent and impartial judiciary as the interpreter of the Constitution and as the custodian of the rights of the citizens through the process of judicial review, which gives the mandate to the judiciary to interpret the laws but not to make them, nor to lay down general norms of behavior for the government or to decide upon public policy.” (Excerpted from the Dr. Kailash Nath Katju Memorial Lecture on ‘Separation of Powers Under the Constitution and Judicial Activism’, New Delhi, April 26 reported Indian Express, April 28, 2007).
It is difficult to find a case where the judiciary has attempted to frame a law. If not, then why make this complaint? The judiciary has a constitutional right of striking down the laws framed by an unimaginative, partisan, and vote gathering legislative class. Doing so is exercising its powers of review. If politicians make bad laws that strangle citizen rights and if people ask for relief, the courts are obliged to review such Bills and Acts. Citizens cannot wait for a fresh general election to remove bad lawmakers. Besides the issue of a bad law is not to be decided at polls but at the level of those who understand the difference between public good and public pandering, between ethics and convenience, between dharma
. Politicians wish to continue in the vein of asserting political primacy. To quote again Shri Chatterjee who aired another platitude: “The Constitution does not contemplate a superorgan nor confers an over-riding authority on any one organ. No organ has any power to superintend over the exercise of powers and functions of another, unless the Constituti
on strictly so mandates.” To buttress his opinion he mentions quotes earlier parliamentary debates and from Jawaharlal Nehru (whose rhetoric is too often given an undue aura of sanctity). “Intervening in the debate in the Constituent Assembly, many learned members had expressed the view that the doctrine of judicial independence was not to enable the judiciary to function as a kind of a ‘super legislature’ nor a ‘super executive’. In the words of Pandit Jawaharlal Nehru, while speaking in the Constituent Assembly: “No Supreme Court and no judiciary can stand in judgment over the sovereign will of Parliament, representing the will of the entire community. If we go wrong here and there, it can be pointed out, but in the ultimate analysis, where the future of the community is concerned, no judiciary can come in the way . . . ultimately the fact remains that the legislature must be supreme and must not be interfered with by the court of law in measures of social reforms.”
One must pause to think of the deep consequences of these statements. Firstly, these are words of Chatterjee and Nehru, not of the Indian Constitution nor do they carry its import accurately. Judges challenging the acts of politicians will always seem “super legislature” and “super executive” to politicians. But not to the people who feel wronged and look for relief. Secondly, these words of Nehru should not be used to preach an unconstituti
onal primacy or infallibility, let alone any ‘supremacy’ of the legislative class. Being elected by the people does not transfer any unalloyed wisdom on the legislators. On the contrary they are known to succumb to many influences often working against public good. One may read an old text like the Arthashaastra
for the warnings to the monarch against temptations and subterfuges. The temptations of modern psephotheria (vote-hunting) and global favors are much greater than in ancient days. Once elected, peoples’ representatives may not keep, and in the past for many decades they have not kept, peoples’ welfare and wishes in mind but may act in utter self-interest. Who shall check them if not the judiciary and a strong vocal intellectual class? The intellectuals have no constitutional authority, they can only talk, plead and publish but the courts can act and the Constitution clearly provides for that. The sooner our legislators and politicians shed the illusion of their supremacy, the easier will it be for the people to keep their faith in democracy. The right to make laws is not supremacy but a function to be discharged with humility. Moreover, this function is open to questioning by the people who can ask the courts to review them. The Indian Constitution is not the manifesto of a Russian or a Chinese totalitarian Marxist state, which enshrines unlimited rights in the rulers under the garb of ‘will of the proletariat.’ Is India collapsing into a totalitarian system keeping the showy shell of democracy? The politicians are disturbed by the recent orders of courts, which they consider an encroachment. In the Lok Sabha speaker’s view, “courts have apparently, if not clearly, strayed into executive domain or in matters of policy… the orders passed by the hon’ble high court of Delhi in recent times dealt with subjects rangi
ng from age and other criteria for nursery admissions, unauthorized schools, criteria for free seats in schools, supply of drinking water in schools, number of free beds in hospitals on public land, use and misuse of ambulances, requirements for establishing a world class burns ward in the hospital, the kind of air Delhiites breathe, begging in public, the use of sub-ways, the nature of buses we board, the legality of constructions in Delhi, identifying the buildings to be demolished, the size of speed-breakers on Delhi roads, auto-rickshaw over-charging, growing frequency of road accidents and enhancing of road fines.” The Speaker and all politicians obstinately choose to forget that the people were forced to rush to the courts as the legislators and administrators have failed to act as they have stayed under the pressures of the groups that resist change and wield money and vote power to perpetuate status quo. In fact, these two pillars of democracy have abandoned real social reform. Judiciary the third pillar is compelled to take the burden not out of choice, not out of judicial activism, but to fill in the dark chasm created by legislative and executive inactivism. All these issues were not taken suo motto by the judges but because the people went to knock at their courts. Should they have slept like the parliamentarians to wake up only to shout and squabble in the wells of the Parliament and Legislative Assemblies?
Unfortunately, in spite of severe erosion of daily governance and spreading mutinies, politicians are still in the Rangila syndrome of slothful self-enjoyment. Like the Muhammad Shah of yesterday, they still think that ‘hunoz delhi door ast’ (Delhi is still too far) for the Nadir Shah of anarchy to arrive and capture the Indian State. They are not worried about what the courts do as they know that the courts are already working overtime and beyond a measure, they cannot take issues of publi
c interest or of constitutional nature for timely relief. Actually, the politicians have abetted in the delay in courts, as all governments have silently conspired to keep the number of benches and courts too few. So have the executive class forced too many people to take the road to litigation, by their frequently arbitrary and insensitive decisions, making GOI the biggest litigant in the land.
Half Baked Bills and Acts
Vote banking compels our legislators to hastily bring in bills that are genetically defective. The usual method is to introduce bills at the instance of certain lobbies that are vocal in media and influential as a class seeking greater aggrandization of their own image. The reformist atmosphere for the enlargement of women rights, protection of children from abuse, minority protection and similar issues helps many groups, particularly the NGOs with foreign support and collaboration. The Anglophonic Indian liberal class, as a rule ignorant of the social realities on the ground, chi
ps in with their support through press and lectures in fashionable centers of discussion. The long-term interest of the Indian people as a whole and the compulsions of orthodoxy enforced by lack of education (of any sort, traditional or modern) are ignored in formulating these laws. It is believed that a new rule (that transforms into ‘dandaas
’ in the hands of the local police) shall be enough for social compliance, where as the truth is that until a fresh vision has not been achieved through education and public awareness, compliance of the new laws remains an illusion and in actual practice ends up in open abuse of the new law.
The most disturbing thing about these so called bills for social reform is that they follow double standards and are conceived not along the same principles of liberty, equality and fraternity but are divided into two categories, one for the majority of Hindus and the other for the minorities of Muslims and Christians. For Hindus they aim to usher in some sort of a global modernity but for the minorities they are meant to give a fresh lease to regression and orthodoxy in the name of ‘protection of minority rights’. Nehru initiated a number of reforms, modernizing and democratizing the Hindu marriage and inheritance laws. These reforms were also applicable to Sikhs, Buddhists and Jains (all three defi
ned as Hindus by the Supreme Court for marriage laws). The reforms forbade Hindu men to take more than one wife, prohibited child-marriages, and gave daughters and sons equal inheritance rights. However, the Muslim community was exempted from these reforms. The hype that follows the formation of these half-baked laws serves to falsely project certain members of Parliament, women activists, film actresses, peace-nicks and some retired bureaucrats as fore-runners of reform. These people are often decorated with Padma awards, UN recognition and finally fat sums of financial aid to the institutions these worthies patronize. To make their images super effulgent these self-seeking reformists make the laws as sweeping as possible often without appropriate checks and balances. Such bills that eventually get enshrined as Acts in the Constitution, impossi
ble to amend in spite of the growing damage that some of them continue to cause. The list of such new laws is long but some of them may be mentioned to illustrate the fact that they have caused more regression than any progression that their formulators boasted about.
Shah Bano Case
The most prominent of these is the Muslim Women (Right to Protection on Divorce) Act, 1986, popularly known as the Shah Bano case, exempting Muslims from obligations to financially support ex-wives. It was enacted by the Congress government of Rajiv Gandhi who untiringly claimed to take India to the 21st century but in actuality, succumbed to the pressure of the ultra conservative Muslim clergy that have always insisted on an uncharitable version of Shariyat laws that severely curtail the freedom of Muslim women in joining the modern mainstream life. The ruling given by the Supreme Court of India that paved a well-lit path for Muslim divorcee women by awarding the same benefits that were available to the majority Hindu women. Begum Shah Bano, a middle-aged Musli
m woman from Madhya Pradesh, was divorced/given triple talaq by her husband, MA Khan after 43 years of marriage. She filed a petition in the state High Court that as an Indian citizen she was entitled to financial support from her former husband. This penurious Muslim woman claimed for maintenance from her husband under Section 125 of the Code of Criminal Procedure. The Supreme Court judges in 1985, held that the Muslim woman have a right to get maintenance from her husband under Section 125. They observed: “This appeal, arising out of an application filed by a divorced Muslim woman for maintenance under section 125 of the Code of Criminal Procedure, raises a straightforward issue which is of common interest not only to Muslim women, not only to women generally, but to all those who, aspiring to create an equal society of men and women, lure themselves into the belief that mankind has achieved a remarkable degree of progress in that direction. Under section 125 (1) (a), a person, who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the Court to pay a monthly maintenance to her at a rate not exceeding five hundred rupees …‘wife’ includes a divorced woman who has not remarried.”
They pointed out whether the spouses are Hindus or Muslims, Christians or Parsis matter little, as section 125 is a part of the Code of Criminal Procedure, not of the civil laws, which define and govern the rights and obligations of the parties belonging to particular religi
ons. This section was enacted to provide a quick relief to those who are unable to maintain themselves. It goes across the barriers of religion even though it does not supplant the personal law of the parties.
The Supreme Court also tried to interpret the holy Quran liberally by pointing out that the verse 241 for divorced women says that “Maintenance (should be provided) on a reasonable (scale). This is a duty on the righteous.” They also rejected the hard-hearted plea of the All India Muslim Personal Law Board that in verse 241, the exhortation is to the more pi
ous and not to all Muslims. Angry voices were raised against the verdict, leading to demonstrations all over India. The orthodox stand was that Section 125 CrPC couldn’t apply to Muslims. Accepting maintenance beyond the iddat
period was haraam
(illegitimate) under the Shariat as all relationship between a man and his wife would have ceased. Iddat
is a three months period to ascertain whether the woman is pregnant or not and if with the child, only the child is entitled to support from the father. After the triple utterance the woman could be supported either by her relati
ves or the Wakf Board. Islam does not allow alimony beyond the period of iddat
, said the clergy.
To appease the orthodox, the Rajiv Gandhi’s government skirted the issue that a secular relief in addition to the personal law can be given to Muslim women even though divorce may be decided according to Muslim personal law. The Congress party succumbed to the clergy and brought in the Muslim Women’s Act, 1986. Apart from performing a ritual lip service of opposition, the well-sung progressives of the Anglophonic class also submerged into silence and some of them even sang odes in praise of the Congress for upholding the sanctity of the shariyat. This was a classic case of hypocrisy of the ‘progressives’, who routinely hold that a 21st century outlook favoring departure from older laws permitting of polygamy or primogeniture, is mandatory for the Hindu majority of India, while a perpetuation of Islamic and Christian orthodoxy for the sake of bishops and imams (who are often willing agents in the vote hunting of political parties) is in the interest of Muslims and Christians as it ‘protects’ their minority rights. ‘Progress’ thus prescribes one direction for Hindus and another for minorities. Not only does it make a mockery of the very idea of progress, it also ghettoizes the minorities leading to their alienation and profiling in Indian society. The Shah Bano Act helped to perpetuate the social isolation of Muslim women and their utter submission to the unbudgi
ng and ever fossilizing clerics who now frequently issue fatwas regarding women over and above the law of land. This outcome of the Shah Bano amendment has not been adequately scrutinized in the intellectual circles or universities dissertations on minorities.
Section 498 A
A typical example of attempting to remove a social evil (in this case of dowry and cruelty to married women) by making an over-harsh law is the case of a special provision called Section 498A, which defines the offence of matrimonial cruelty. This was inserted into the Indi
an Penal Code by an amendment in 1983. Offenders can be imprisoned as well as fined under the section. The offence is non-bailable, non-compoundable and cognizable on a complaint made to the police by the victim or her relatives. The section defines the meaning of cruelty
as follows: any willful conduct which is of a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb, or health (whether physical or mental) of the woman; or b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
Made with the best intentions the law has met with a strange fate. It has not been able to provide the sought relief to the real victims specially those who come from poor or rural sections but it has been brazenly abused in urban areas by unscrupulous women and their families with the help of shameless lawyers. Even in divorce cases matters filed on grounds of incompatibility, lawyers frequently, rather as a rule, suggest to their woman client to take recourse to this section to pressurize the husband to meet her demands sheepi
The report of the Malimath Committee, submitted in April 2003, while ostensibly discussing the reform of the Criminal Justice System, discusses the “heartless provisions” of section 498A. The Committee (16.4.4) depi
cts the situation where:
“a less tolerant and impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons langui
sh in custody. There may be a claim for maintenance adding fuel to fire, especially if the husband cannot pay. Now the woman may change her mind and get into the mood to forget and forgive. The husband may also realize the mistakes committed and come forward to turn over a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she cannot do so as the offence is non-compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family.”
The Committee recommends that the section be made bailable and compoundable to provide space and time for reconciliation. The Committee rightly suggests that the amendment shall be good for women as they would be able to get better maintenance which is denied now as the husband often loses his job in the pendency of the cases.
After report of the Malimath Committee, the judgment of the Delhi High Court on 19 May 2003 in the case of Savitri Devi v. Ramesh Chand and others (104  Delhi
824) took up the issue of “misuse.” The Hon’ble Justice J.D. Kapoor, who has also taken up the matter in his book, Laws and Flaws in Marriage
: How to Remain Happily Married,
Konark Publishers, Delhi: 2002, in his judgment discusses section 498A. He “feel(s) constrained to comment” upon it as it “hit[s] at the foundation of marriage itself and has not proved to be so good for the health of the society at large.” For him, section 498A results in the social catastrophe of thousands of divorce cases, primarily due to arrest of members of the family and the consequent reduction attrition that closes the chances of salvaging the marriage. He notes that in the Indian system remarriage is not so easy and women lacking in economic independence become a burden over their parents and brothers. He also notes the misuse of the provisions of section 498A by women complainants and the police. He acutely observes that the police are “bad and unskilled masters” in whose “iron and heavy hands” the “ticklish and complex” issue of domestic disputes should not be left. Further, the “misuse” by women complainants is explained only as the “growing tendency” among women to rope in each and every relative in the complaint. He ends up concludi
ng that these “provisions were though made (sic) with good intentions but the implementation has left a very bad taste and the move has been counterproductive.” He suggests that the Section 498A/ 406 IPC be made bailable, and necessarily compoundable.
A special leave petition was filed in the Supreme Court of India, Sushil Kumar Sharma Vs. Union of India (UOI) and Ors – Jul 19 2005, Citation: JT 2005 (6) SC 266, Case No: Writ Petition (C) No. 141 of 2005, Judgment: Jul 19 2005 in which the prayer was to declare Section 498A to be unconstitutional and ultra vires and in the alternative to formulate guidelines so that innocent persons are not victimized by unscrupulous persons making false accusations. Further prayer was made that whenever, any court comes to the conclusion that the allegations made regarding commission of offence under Section 498A IPC are unfounded, stringent action should be taken agai
nst person making the allegations.
The apex court, however, dismissed the petition, taking the view that the “principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional.” The judges, however, observed that “the object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignomy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vi
res, does not give a license to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways as how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon.” In spite of all these deliberation, the lobbies of social rights and un-reviewed progress persist in their march for more strident laws. Far from reviewing the section 498A to prevent its misuse, there are reports that The National Commission for Women has sought harsher punishment coverage under the Anti Dowry Act on grounds that there have been reports of dowry harassment even after nearly three decades of being married. NCW also wants the life sentence to be raised from seven years to ten years to help ward off the evil of “dowry.’’ This hankering for the easy way out smacks of the colonial attitude that our so called reformers have inherited.
Governance in Decline
It is now taken for granted that the governments cannot clear the roads of encroachers, or keep the chain-pullers out of fast speed trains, or remove tonga
s and rikshaw
s from bi
g traffic roads. They cannot save parks from being destroyed by marriage parties, fill telephone cable digs in front of the houses for months, pick up garbage or clean drains or prevent morning squatters on fly-overs. The populist demands that drive the average Indian politician are viciously contradictory as they are based on very parochial interests and petty vote banks. When one member of Parliament proposes that a law be enacted to make small family an eligibility condition for membership of Parliament it is opposed by another who fears that lower class representations would be reduced by such a restriction. If stray cattle is sought to be removed from busy roads, all parties combine to sabotage the move as it displeases their urban-village voters. So the Chief Mini
ster of every State advises people not to feed plastic to cows but leaves cows on the road to eat that plus other garbage. Who can give back the civic rights to the citizens if not the Courts? At the same time it would be naive to invest too much hope in the efficacy of the judicial system given the pressures and the challenges under which it is functioning. At the district level the judicial officers have to distance themselves from the ruling class and have to resist administrative and political influences, particularly so in the non metropolitan areas. At the level of High Courts and the Supreme Court there is excessive piling up of cases and the rule of ‘justice delayed is justice denied’ obtains. Given the extra burden of compensating for legislative lame-duckedness and executive inertness and frequent wickedness, the public expectancy of relief from the judicial intervention shall turn into somber frustration. For the present judicial rebukes to the executive decisions or lack thereof, seem glamourous on our blaring televisions, but the future is ominous. Deflecting the judiciary through the covert means of rabble-rousing by legislators is quite clearly in the offing. The number of unscrupulous and criminally charged legislators is so large that instigated unrest to seek favourable judgments is likely to be used relentlessly. There has been a history of the legislature making severe attempts to constrain the independence of the judiciary, especially under the rule of the Congress Party when Indi
ra Gandhi had imposed the State of Emergency in India from June 25, 1975 to March 21, 1977 under Article 352 of the Constitution of India, effectively bestowing on herself the power to rule by decree, suspending elections and civil liberties. During this unfortunate eclipse of democracy she had promulgated the idea of ‘committed judiciary’, which was just another name for eulogizing judges who fell in line with the wishes of the ruling party. As a matter of fact the attack on the judiciary began in 1973 with the superseding of three judges in the appointment of the Chief Justice of India.
Soon after the formation of Bangladesh, when Indira Gandhi had phenomenal popularity for show but an insidious Soviet influence from within, the import of the concept of a submissive judiciary was hardly surprising. As stated by Mohan Kumaramangalam, a well known Soviet supporter in her government, “In appointing a person as Chief Justice, I think we have to take into consideration his basic outlook, his attitude to life, and his politics. We, as a government, have a duty to take the philosophy and outlook of a judge into account in coming to the conclusion whether he should or should not lead the Supreme Court at this time. This is our own prerogative which the Constitution has entrusted to us.” One can clearly see that the legislative class can easily slide into the illusion of considering themselves as superior visionaries who can have the right to dictate to the judges. During the Emerge
ncy, this right was fully wielded in rewarding the submissive and punishing the noncompliant judges. Plans were also floated for the establishment of a superior council over the judges. After a short absence, when the Congress Government was back in power in 1980, intimidation of the judiciary was renewed which included a filing of a privilege motion against the then Chief Justice of India.
A Supreme Court judge is appointed by the President, after consultation with the Chief Justice of India or with such judges of the Supreme Court or High Courts as the President may deem necessary (Article 124). A High Court Judge is appointed by the President on due consultation with the Chief Justice of India, the Governor and the Chief Justice of the High Court (Article 217). But it does not take much imagination to see that very wide discretionary powers are conferred on the President in selecting judges. With a compliant President, another goal that legislators of all parties are brazenly seeking, this discretion comes to the government of the day. So, as the law stands, the appointments are very much in the hands of the legislators as the Chief Justice of India must be consulted, but need not be respected. In the last two decades, a major instrument of influencing the independence of serving and about to retire judiciary is the appointment of retired judges as chairpersons of various Commissions and Enquiry Commi
ttees. The number of such bodies is now staggeringly large and hence almost a certain post-career option. For instance, the chairperson of the National Human Rights Commission can only be a former Chief Justice of India.
It is even more disheartening to see that the corporate world, professionals and academics have failed to speak out loud and clear in favour of preserving judicial independence. In doing so, they could have ensured their own independence, so much under increasing attack from political quarters. Like the proverbial frog in the well who turns a blind eye to the prowling snake gobbling fellow creatures and is helpless when it is his turn, the Indian intellectuals are divided and submissive. We see lawyers falling prey to their union leaders and confronting judicial officers at the slightest pretext, teachers welcoming vice-chancellors and registrars from the army or bureaucracy for factional needs, and business houses outwitting each other in license procurement instead of unitedly demanding deregulation for free trade.
The Constitution for the modern Republic of India was formed by men who were worthy freedom fighters but not administrators in the least. Most of them were raised on the ideals of Western Enlightenment that was too anthropomorphic and racially biased and the Romanticism that overrates human excellences and overlooks the vicious in humanity. True to the education system of their times they had no understanding of the principles of governance formulated in classical or traditional India and had scanty acquaintance with the same in Greek or Roman times. The Constitution they framed rested too heavily on British and American models and sought to excel both by further idealization. Whereas ancient societies ensured strong eligi
bility restrictions on rulers through class, education and family backgrounds, the Euro-model which presumed that ‘all men are born equal’ translated into ‘all men are equally deserving’ to rule. Other than a minimum age and a residential affiliation the Indian Constitution demands no educational, moral or financial eligibility for contesting an election to its various elected bodies from a village panchayat to the Parliament. In the fifties the only recognizable qualification for a candidate was whether he had been arrested by the British police as a ‘freedom fighter’ and jailed for some period. In plain language, those who had suffered, however, briefly, under British suppression were now to be rewarded by legislative positions. Needless to say that those who made their claim to have fought for freedom were very often imposters and hence a very inefficient and opportunistic class came to be installed as professional politicians. By the seventies and eighties it was infi
ltrated by muscle men and money makers who profited from the vast corruption that the Socialist economy perpetuated. It is time to rethink on the basic qualifications of the legislator. The opportunity to become a ruler that democracy provides to its every citizen has to be counter balanced by a demonstrated eligibility of that citizen in his/her moral conduct, educational qualifications and financial honesty before that person is allowed to contest an election. Any lapse during office should warrant immediate recall. Some vision of the future is necessary to provide for a minimum efficiency to keep the wheels of admini
stration running and avert disasters, some decisions displeasing smaller vote-clusters are unavoidable. But unfortunately, not only are our legislators unwilling to face this fact, they have no patience to let the bigger results bring them wider support. By their training they are not capable of even identifying the major steps that can bring the greater good. Here we fall miserably far behind the better organized Western democracies to which we often flaunt our claim of being the largest republic on earth.
The Aggressive West
In better working democracies in the West the elite consisting of politicians, businessmen, experts and intellectuals that rules majority population has the good sense “to agree not to disagree” on certain basic methods of civic administration, national security and social control. It provides certain freedoms, even in excess, for all and sundry, such as those of sex, pornography and profiteering through consumerist sales. But it does not compromise on national unity and integri
ty of the country. For instance, the US can allow Khalistanis to preach dismemberment of India and even train terrorists on their soil, but it keeps the Quebec separatists in check as splitting of Canada would be a disaster too close to home. Even the fellow white country like France does not allow its radicals to supply arms to the Quebec separatists much as it might be pleased to see the demand for a French speaking nation take shape on the North American continent. Similarly, the USA, while pretending to fight Islamic terrorism globally keeps the protection of its own soil at hi
ghest priority. It bombs Afghanistan and then Iraq in retaliation to Islamic bombing of New York, now known cryptically as 9/11, ironically a number for emergency help in the USA. But it allows Pakistan an “ally in the war against terrorism” to send jehaadi
s into Kashmir, Chechnya and vicinity and cause immense bloodshed. While freedom of assertion by the ethnic and religi
ous groups has been encouraged on the East European (the classic example of erstwhile Yugoslavia), Asian or African soil, the same is either outright denied (as to American Native Indians) or throttled (as to the Spanish Basques or the Turkish Kurds) or craftily contained by strategies of Cultural Mosaic and the Salad Bowl programs within the USA.
The Western societies have agreed between themselves to put on leash sub-nationalism within the territory of the West and to unleash it on the soil of the Rest. It is on the might of such unwritten understanding that in the 90’s Samuel P Hunti
ngton made the glorious declaration that the West shall be able to hold against all the onslaughts on its hegemony in the coming century. He came all the way to New Delhi to advise India to rely upon America as she is going to be a lonely Hi
ndu country culturally isolated from other civilizations. Just first five years of the new century have proved him wrong. In spite of all bravado, in the fight against Jehadi
Islam, the Western confidence is flagging, its war strategies are sagging and trust in allies is shaken. It is clear that Western diplomatic principle of divide and thus rule Asia and Africa can no longer bear any fruit. The greater interdependence among all nations for facing global catastrophes, be it militant Islam, mass migrations, insecurity of investment or pandemics like AIDS and Cancer, they all call for saving thy nei
ghbour as thyself. As the Western nations have the experience of guarding self interest, they have to rise now to protect international interest for their own national well being. The ruling elite in India unfortunately, has still to graduate to have the capacity of making a consensus on issues of basic national interest. For one thing it has no experience of sinking its differences for the sake of fighting an extended war, or for influencing others. It is still divided ideologi
cally along the Cold War division of Command Economy Left and Free Trade Right even though such a divide has ended for Russia and China. What is worse, our leaders have totally localised the American concepts of ethnicity along caste lines. India is now functioning politically as multi-ethnic and multicaste state retaining command economy. In other words, like the erstwhi
le USSR, it offers all the possibilities of breaking up into Khalistan, Gorkhaland, Azad Kashmir, Bodoland etc., coupled with insurmountable state inefficiency inflicted by its public sector and subsidization. Sadly for humanity, even sobering hardships such as long wars or earthquakes do not ensure political maturity. Our neighbor Bangladesh has been reeling from one natural calamity to another for nearly two decades but the fight between fundamentalists and progressives seem to be going in the favor of the former. Populist compulsions are too much for the leaders to take hard decisions. To remind oneself of the golden days of the much remembered Greek democracy, after Perikles died in 425 BC, “power went to ranting democrats from the other backward classes, like Kleon the tanner, and Hyperbolos the lamp-seller, who unlike Peri
kles relied less on their intellect and more on popular likes and dislikes that made Athens lose the twenty-three year long Pelopennesian war. Mere popular demands are never enough to lead a democracy, and are certainly no substitute to a leader’s vision.” (Oxford Classical Dictionary, 1970).
BHARAT GUPT -
Associate Professor, CVS, Delhi Universi
ty. Founder member and Trustee International Forum for India's Heritage.
Born in 1946 in Moradabad, a small town in the Uttar Pradesh province of India of mixed Hindu-Muslim population, best known for its engraved art on brassware and a little less for Hindustani music and Urdu poetry. Parents moved in early fifties to Delhi, the new capital of modernity and political intrigue, where I went to school and college and studied English, Hindi, Sanskrit and philosophy, but spent every summer in the district town.
Spent a year in the US at the end of Counter-Cultural days and took a Master's degree from Toronto. I learnt to play the sitar and surbahar under the eminent musician Uma Shankar Mishra and studied musicology , yoga sutras and classics under Acarya Brihaspati and Swami Kripalvananda.
Trained both in modern European and traditional Indian educational systems, I have worked in classical studies, theatre, music, culture and media studies and researched as Senior Onassis Fellow in Greece on revival of anci
ent Greek theatre.
As a classicist I came to realise that ancient Greek drama and culture as a whole, was given an unduly empirical color by the modern West. Looking at things from my own location I saw that Greek theatre was closer to ancient Indian theatre as an ethical and religious act or hieropraxis. Instead of being seen as Western and Eastern, Greek and Indian theatres should be seen rooted in the Indo-European cultural beliefs, myths and idolatory and the aesthetics of emotional arousal.
I have lectured on theatre and music at various Universities in India, North America and Greece. I am on visiting faculty at the National School of Drama, Delhi and the Bhartendu Academy for Dramatic Arts , Lucknow.