RAJA KUMARI, RAP QUEEN
FREEDOM IS INDIVISIBLE, AND THOSE CHARGED WITH ITS PROTECTION OFTEN FAIL TO UNDERSTAND THAT WHATEVER THEY PERMIT AGAINST CITIZENS OF THE LEAST AGENCY AND RESOURCES CAN LATER BE DONE UNTO PEOPLE LIKE THEM
the Supreme Court granted bail in the earlier case, he would not be free until bail was granted in the other case as well.
When the system acquiesced in Gadling’s incarceration, it signalled that others up the line, like Bharadwaj and Chidambaram, were also vulnerable. Freedom is indivisible, and those charged with its protection often fail to understand that whatever they permit against citizens of the least agency and resources can later be done unto people like them.
The Supreme Court has not stood to protect even its own judges. In 2011, Justice Jayant Patel of the Gujarat High Court ordered a CBI enquiry in the Ishrat Jahan case. In 2016, he was transferred to the Karnataka High Court. In 2017, he was to be transferred again to Allahabad, which would have prevented him from becoming the acting Chief Justice in Karnataka. He chose to resign his office. In 2019, Chief Justice of the Madras High Court, Vijaya Tahilramani, followed a similar course when the Supreme Court recommended her transfer to Meghalaya.
IN 2010, JUSTICE AKIL KURESHI of the Gujarat High Court had remanded Amit Shah to CBI custody in the Sohrabuddin Sheikh case. The consequences of that decision have dogged his career ever since. He was transferred to the Bombay High Court, which prevented him from becoming the acting Chief Justice of the Gujarat High Court. His name was recommended for Chief Justiceship of Madhya Pradesh, but the central government wouldn’t process the collegium’s recommendation. The collegium has now recommended him to be the Chief Justice of Tripura, but that recommendation too is being stalled by the government. The apex court will have to take a call on reiterating its recommendation or set the dangerous precedent of having its recommendations ignored. Thus, even the power of judicial appointments and transfers, which the judges guarded as a sign of judicial independence, has eroded into nothingness through executive obduracy and judicial acquiescence.
A tame judiciary and a threatened bar cannot perform their designed constitutional function of serving as a checks-and-balances mechanism upon which good governance rests. If this mechanism were compared to a railway engine, an independent judiciary is the necessary brake on an executive with runaway tendencies. When the executive is allowed to fiddle with these brakes, the country is put at risk of all the potential bad consequences of a runaway governance train. When the judiciary begins to hesitate in its exercise of judicial review, it becomes complicit in executive excess. The system, then, cannot function as designed.
An example from across the border might illustrate the point. In 1954, Chief Justice Muhammad Munir of Pakistan invoked the ‘doctrine of necessity’ to legitimise the dismissal of the Constituent Assembly by Governor
General Malik Ghulam Muhammad. He cited Bracton’s maxim—‘that which is otherwise not lawful is made lawful by necessity’—thus setting into motion a series of subsequent legitimisations for usurping power. In the following decades, the country broke up, the Pakistani judiciary caved in, and swore fealty to military dictators like Zia-ul Haq. It presided over the hanging of elected prime ministers and blinked at the unaccounted disappearance of thousands of individuals. In March 2007, when General Pervez Musharraf sought to dismiss Chief Justice Ifthikar Chaudhry, lawyers in Pakistan had to protest on the streets to have him reinstated. His reinstatement restored the stature of the judiciary, which has become a power player, and in more recent times, even assisted the Pakistan armed forces to dethrone a prime minister, Nawaz Sharif.
Returning to India, the portents are ominous. The Emergency era was preceded by calls for a socialistic pattern of society and a committed judiciary. Forty-odd years later, calls to celebrate India’s real and imagined civilisational accomplishments are accompanied by inducements and threats to secure the compliance of all organs of state, including the judiciary. A healthy scepticism, which is the hallmark of judicial review, has been replaced by a willing suspension of disbelief.
In an era of social media binaries, Indians have chosen to increasingly forsake the spirit of liberty. In a famous speech, delivered at the height of World War II, Justice Billings Learned Hand defined it as “the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias”. He went on to warn: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.”
Does independent India value liberty in its true spirit, or is it content with a mere semblance of freedom? The answer will come not from India’s courts but from its people.
WHEN THE JUDICIARY BEGINS TO HESITATE IN ITS EXERCISE OF JUDICIAL REVIEW, IT BECOMES COMPLICIT IN EXECUTIVE EXCESS