The judiciary must tread with caution

Rohingya issue involving national security is, in the view of many, best left to the prudence of the executive.

The Indian judiciary has been a rock of stability, a tempering force and the sage ultimate adjudicator in a seemingly chaotic country, where everyone has an opinion on everything; accordingly, public opinion swings wildly from one extreme to another and embraces a spectrum of views that subscribe to every shade and hue possible. But of late, some pronouncements by this august body are causing concern for a variety of reasons: perhaps straying into areas that may best be left to the executive, for decreeing on cultural traditions that could do without statements that may appear to border on the partisan in lieu of the stern impartiality that is the mark of the judiciary.

But it would be a stretch to dub these as examples of judicial outreach or unwarranted activism.

Justice Dharmadhikari of the Bombay High Court, while hearing a petition filed by the families of murdered rationalists Narendra Dabholkar and Govind Pansare remarked: “Will more people be targeted? There is no respect for liberal values and opinions. People are increasingly being targeted for their liberal principles… Not just thinkers, but any person or organisation that believes in liberal principles can be targeted. It’s like if there is some opposition to me, I must have that person eliminated.”

When Justice Dharmadhikari mentioned liberal values and liberal principles, was he speaking of liberal values in their broadest interpretation that refers to a universal belief in the tenets of liberty, equality and free speech? He was surely not invoking a more limited definition in the context of ideological schism in India: left liberal versus nationalist or right wing.

I could be a nationalist or a right-wing proponent, but yet firmly believe in the principles of true liberalism: a respect for free speech and liberty. Therefore, there can be no argument with the premise of the learned Justice.

However, if the elegant phrase “person or organisation that believes in liberal principles” is used by politicians and others to identify and side with the left-liberal lobby in India, it would be unacceptable to others of a different persuasion.

It would be best to give Justice Dharmadhikari the benefit of the doubt as a jurist of his eminence and knowledge richly deserves.

The second decision that agitates the mind is the Supreme Court diktat that prohibits the sale of firecrackers in the NCR during Diwali. In its zeal to curb air pollution, the SC appears, to many, to have inadvertently hurt majority sentiments and affected an age-old tradition. The Supreme Court should perhaps have opted for a limited ban that would restrict the celebration of crackers in certain select areas involving less polluting firecrackers, in deference to Hindu emotions.

The legal challenge in the Supreme Court against the government’s decision to deport Rohingya Muslims who have entered India illegally is another area of concern. No doubt that the Rohingya crisis is a humanitarian issue. But for India it comes admixed with serious security concerns as well. In 2015, Burmi, a Rohingya was killed in a terrorist encounter in Kashmir and the 2013 Bodh Gaya serial bombings have been linked to the Rohingya issue. Additionally, there is credible intelligence reports that some refugees are working in concert with Pakistan’s ISI, the ISIS and other terrorist groups.

This issue involving national security is, in the view of many, best left to the prudence of the executive branch, rather than be placed at the door of the judiciary. The government made it very clear in its affidavit filed: “Such facts (intelligence inputs) will satisfy… this Hon’ble court to accept the respectful submission of the Central government that it is desirable, expedient, constitutionally imperative and in the interest of the nation to leave such a decision to the executive decision making/policy of the Central Government…”

After initially appearing to question the government’s stance, the court refused to stay the deportation and advocated a balance between the “humanitarian issue” and “national interest”.

Likewise, the SC showed great sagacity by reiterating the role of the executive branch in its recent pronouncement on the national anthem controversy. Last November, the court had categorically stated “All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up…”

But on 23 October in response to a petition seeking recall of its earlier order, the court rightly refrained from intervening either way, even though it appeared critical of its previous judgement. Instead the court suggested: “…We think it appropriate that the central government should take a call in this regard… When we say ‘take a call’, needless to say, the discretion rests with the central government. The discretion has to be exercised without being influenced by our interim order…”

For the judiciary to maintain its credibility, efficacy and dignity it must continue to tread carefully and avoid those areas that are best left to the executive. Vivek Gumaste is a US based academic and political commentator.