Is India’s judiciary up for the fight?
Observers around the world were not necessarily being malicious, with the exception of Winston Churchill, in thinking that India might not last as a democracy for too long after 1947. The Cassandras were wrong, and the new nation’s refurbished state institutions, led by a robust parliament and an enviable judiciary, fortified the trust the masses reposed in the complex multicultural nation state.
Swiftly putting the trauma of partition behind, India’s Nehruvian promise, a gold standard for according impoverished masses dignity and equal rights, melded a Babel-like cluster of linguistic and religious groups into a cosy nation, the opposite of the same differences propelling postWestphalian Europe into fragmented neighbourhoods. The Indian experiment defied the rule.
The ideal of a multicultural democracy contended with headwinds but withstood the occasionally bumpy ride, which at one point, in 1975, threatened to derail the political project altogether. The close call was tamed, however, and not for the first time, the initiative to save the day belonged to the masses. Indira Gandhi’s rout was a high point of their prowess, and her chastised return a symbol of their grounded politics.
The journey over the next four decades saw the steady clip beginning to miss the beat, for example, in the loss of the moral compass in Punjab, followed by the horrific pogrom of Sikhs in the heart of Delhi. The ground looked fertile for a rightward push, hastened by the loss, no doubt, of India’s economic and political anchor in the USSR. The BJP’s migration from its sullen posturing that feigned to court democracy, which vanished with the fight against Mrs Gandhi, to become the spitting image of a religio-fascist party gained speed under Prime Minister Narendra Modi.
Diehard optimists would start returning to the old worrying question. Are democracy’s days numbered in India? In a manner of speaking, the institution is too malleable to take a definition. The ayatollahs in Iran would offer one definition and Vladimir Putin another. Donald Trump and
Benjamin Netanyahu both claim to fight for democracy, as do Narendra Modi and Rishi Sunak.
In the rubble of torpedoed state institutions that once anchored democracy, the one institution that appeared to be best equipped to vacate right-wing assault was India’s judiciary.
Since independence, the courts have protected but also undermined the people’s will as arbiters of India’s destiny. One judge would evict Mrs Gandhi from office. Another restored her powers as a conflicted prime minister. One believed the temple-mosque dispute in Ayodhya was non-justiciable in India’s secular courts. Another set ended the dispute by apportioning a parcel of the disputed land to a popular deity.
At today’s critical juncture, when the country’s vital democratic institutions are being rapidly corroded, the onus of becoming the shield to protect the constitution should ideally lie with the judges. They are the ones who can, on their day, stop the dangerous mischief afoot in its tracks. Everything that the opposition rally demanded in Mumbai on Sunday can be addressed by the higher judiciary. The hounding of opposition leaders can be stopped at least during the elections. There’s widespread mistrust of the electronic voting machines. There’s unabated misuse of religion in canvassing votes, which is unconstitutional. Use of money and muscle power, everything can be corrected by the judiciary. But look again.
The inauguration of the Ram temple in Ayodhya saw 13 former supreme court judges in attendance. They included former chief justices of India V.N. Khare, J.S. Khehar, N.V. Ramana and U.U. Lalit. Among the other judges present were Justices Ashok Bhushan, Adarsh Goel, V. Ramasubrahmaniam, Anil Dave, Vineet Saran, Krishna Murari, Gyan Sudha Mishra, Arun Mishra and Mukundakam Sharma. Ironically, the construction of the temple was cleared by the supreme court in November 2019. The court had termed the razing of the Babri Masjid an “egregious violation of the rule of law”.
In a more recent sign of the judiciary losing the plot, a high court judge in West Bengal took premature retirement to join the Bharatiya Janata Party. Would he get a ticket to the Lok Sabha elections in the state? Lawyers say justice Abhijit Gangopadhyay gave dubious verdicts favouring the BJP and targeting the state’s ruling Trinamool Congress.