Just when the dark clouds over democracy in our country seemed to get darker, a bright silver lining of hope has appeared around some of them. And the sunshine that has produced this hope has come from none other than the head of the highest court in the land.
Read what the Chief Justice of India NV Ramana, said while delivering the 17th Justice P D Desai Memorial Trust lecture on 30 June.
On tyranny in the garb of democracy: “It has always been well recognised that the mere right to change the ruler, once every few years, by itself need not be a guarantee against tyranny.” Bravo!
On independence of the judiciary in India: “For the judiciary to apply checks on governmental power and action, it has to have complete freedom. The judiciary cannot be controlled, directly or indirectly, by the legislature or the executive, or else the Rule of Law would become illusory.” Bravo!
On the (mis)management of the COVID crisis: “At this juncture, we necessarily have to pause and ask ourselves as to what extent we have used the Rule of Law to ensure protection to, and welfare of all of our people. I do not intend to provide an evaluation of the same. Both my office and my temperament prevent me from doing so.” Bravo!
On citizens’ inalienable right to criticise the government and protest: “A public discourse, that is both reasoned and reasonable, is to be seen as an inherent aspect of human dignity and hence essential to a properly functioning democracy. Day-to-day political discourses, criticisms and voicing of protests is integral to the democratic process.” Bravo!
On the duty of judges: “The oath we took, to perform our duties ‘without fear or favour, affection or ill-will’ [defines that] the ultimate responsibility of a judge is, after all, to uphold the Constitution and the laws.” Bravo!
On the duty of lawyers: “Lawyers have an obligation to perform their duties with integrity and diligence, with full respect for the Court, opposing counsel, clients, victims, witnesses and persons involved in proceedings. We need social-virtue rather than economically self-interested behaviour…. Let economy, gender, class or caste never be a hindrance in the path to secure justice.” Bravo!
Restoring People’s Faith in the Supreme Court
Was it imaginable that any incumbent functionary of the Indian State, even one heading the Supreme Court, would dare to speak these home truths in the Modi-Shah regime?
Here is a regime that is systematically squeezing the independence and integrity of our democratic institutions, including the judiciary. The prestige of the Supreme Court in the eyes of the people is at all-time low. Many justices and chief justices in recent years have succumbed to either pressure or the lure of pelf and positions.
One such worthy went straight from being the CJI to a member of the Rajya Sabha. Why?
Another worthy, when he was still a judge in the Supreme Court, praised the prime minister as a “versatile genius” and an “internationally acclaimed visionary”. He had helped a powerful person in the government in a highly sensitive case. He had also cleared a colleague in a case of sexual harassment. The government has rewarded him with the chairmanship of the National Human Rights Commission.
Examples abound of how some judges have done pretty well for themselves by “taking the law in their own hands” — a damning description that appears in Arun Shourie’s magisterial book 'Courts and their Judgments: Premises, Prerequisites, Consequences'.
Is Justice Ramana the Latest Defender of Judicial Freedom?
What CJI Ramana spoke, what his former brother judges did, and how the government coerced and persuaded them to do what they did, prompted me to reopen 'Roses in December', the celebrated autobiography penned by Mohammed Currim Chagla, one of the greatest judges in the history of independent India.
Along with Justice HR Khanna, he was one of the heroic fighters for judicial freedom during the Emergency. Commenting on the craven conduct of the then Chief Justice AN Ray (who was appointed by the Indira Gandhi government by superceding three senior judges) in aiding the attacks on democracy, Chagla writes: “The effect of [these decisions] on the Supreme Court was disastrous. The Chief Justice was looked upon, and he acted, not as the custodian of citizens’ rights but as the upholder of government policy and legislation…When moral deterioration sets in in the character of a person, he goes downhill till he crashes and gets his retribution.”
Recalling Chagla and the Emergency in a commentary on CJI Ramana’s speech is deliberate and necessary. One 25 June, just five days before the speech was delivered, Prime Minister had tweeted on the occasion of the 46th anniversary of the Emergency. "The Dark Days of Emergency can never be forgotten. The period from 1975 to 1977 witnessed a systematic destruction of institutions. Let us pledge to do everything possible to strengthen India's democratic spirit, and live up to the values enshrined in our Constitution."
Modi followed it up with another tweet. “This is how Congress trampled over our democratic ethos. We remember all those greats who resisted the Emergency and protected Indian democracy."
If Modi and his colleagues in the BJP value truth and honesty as Constitutional values, they should ask themselves: “Will those greats who resisted the Emergency” — Justice HR Khanna, Justice MC Chagla, Nani Palkhivala…even Jayaprakash Narayan, Atal Bihari Vajpayee and LK Advani — approve of how the BJP is now “trampling over India’s democratic ethos”?
Would they have kept quiet witnessing the government’s contempt for “the values enshrined in our Constitution” and the “systematic destruction of institutions” now under way?
Modi-Shah Govt has Scant Respect for 'Democratic Process'
Of course, Modi and his colleagues will neither ask themselves these uncomfortable questions nor answer them.
But the very posing of these questions validates what CJI Ramana has reminded us in his speech — namely, that the mere right of people to change those in office through periodic elections is no “guarantee against tyranny” of the elected.
It also tells us how the Modi-Shah regime has scant respect for the fact that “day to day political discourses, criticisms and voicing of protests is integral to the democratic process”.
For proof, look at the data.
In just two years (2016-2018), the Modi-Shah regime arrested 3,974 persons under the Unlawful Activities (Prevention) Act (UAPA). Under an amendment to this Act in 2019, normal bail rules have been rescinded, and an individual can be labelled a “terrorist” even before conviction by trial.
Several persons so arrested have subsequently been acquitted — one of them spent seven years in jail, another 14 and yet another 23 years in jail! The most recent acquittal — just yesterday — by a National Investigation Agency (NIA) court has been that of Akhil Gogoi, the brave young political activist in Assam who had to spend 18 months in jail for protesting against the Citizenship Amendment Act (CAA). About the rampant misuse of UAPA by the Modi government, Mani Shankar Aiyar has written in his column in The Week: “It …needs examination at the bar of public opinion and in Parliament to stop our slide into a banana republic.”
CJI Ramana’s Reflections on ‘Rule of Law’ — and not ‘Rule by Law’
The value and weight of Ramana’s speech lie not only in its (indirect) indictment of the worrisome state of Indian democracy under the current government. Rather, it should also be studied for some of its many thought-provoking observations about the ‘Rule of Law’, which he says “is our best hope for survival as a free society”. He introduces this subject by saying: “Irrespective of what era we are living in, who the rulers are, what the mode of governance is, this is one topic which is never going to lose its sheen and relevance. Because, the story of ‘Rule of Law’ is nothing but the story of the civilisation of humans.”
Beginning with a first-principle approach, he tells us that “law, in its most general sense, is a tool of social control which is backed by the sovereign”. However, this definition in itself is inadequate, and even liable to become a “double-edged sword” For, when law is not used to “render justice”, it can also be misused to “justify oppression”. Therefore, law cannot really be classified as a “law” “unless it imbibes within itself the ideals of justice and equity”
Giving an example of such misuse, CJI Ramana reminds us how the British governed India with their “Rule by Law”, rather than a “Rule of Law”, approach. Not surprising, since their aim was to control “the Indian subjects”.
He recalls how, in 1922, during his famous trial, Mahatma Gandhi captured the imagination of the nation with the following words: “Little do they realise that the Government established by law in British India is carried on for this exploitation of the masses… In ninety-nine cases out of hundred, justice has been denied to Indians as against Europeans in the courts of India.” He thus concluded, “In my opinion, the administration of the law is thus prostituted, consciously or unconsciously, for the benefit of the exploiter.”
Independent India has of course come a long way since 1947; our people are citizens, and not subjects anymore. “The Constitution embodies within itself the concept of Rule of Law and the same can be witnessed from our Preamble, the Fundamental Rights, the Directive Principles of State Policy, the Separation of Powers, etc. By situating the concept of Rule of Law at the confluence of three important values – human dignity, democracy and justice, our founding fathers showed the path for the rest of the world too.”
Yet, while reading CJI Ramana’s speech, several troubling questions come to mind. How far have our laws ceased to be “merely commands” and have been “embodied by a sense of justice”?
In the actual work of our law enforcement machinery, do we see “the binding link between law and justice”? Here, CJI Ramana presents some useful principles for reforming India’s justice delivery system. These principles are well known, yet they bear emphatic repetition.
Reforms for India's Justice Delivery System
“Legislations and judgements should be accessible to general public by translating them into various Indian languages.”
In the age of AI and machine translation, is this difficult to accomplish? No.
“Equality before the law” must be firmly practiced. Here CJI Ramana makes a praiseworthy point about equality before the law for women. Highlighting the issue of ‘gender equality’, he says, “Traditional roles are changing within the family, as is the structure of the family itself. Most nations have recognised equality and dignity of women, either constitutionally or statutorily.” In this context, he also writes, “Bias and prejudice necessarily lead to injustice, particularly when it relates to the minorities.”
I hope that on some subsequent occasion, he elaborates on how Muslims in India still suffer from “bias and prejudice” in courts of law, and in the working of law enforcement agencies, leading to manifest “injustice”.
Has the Govt Served its Citizens Well Enough?
CJI Ramana affirms a very important principle of democracy. “The very essence of a democracy is that its citizenry has a role to play, whether directly or indirectly, in the laws that govern them. In India, it is done through elections, where the people get to exercise their universal adult franchise to elect the people who form part of the Parliament which enacts laws. In the 17th national general elections held so far, the people have changed the ruling party or combination of parties eight times, which accounts for nearly 50 percent of the number of general elections. In spite of large scale inequalities, illiteracy, backwardness, poverty and the alleged ignorance, the people of independent India have proved themselves to be intelligent and up to the task. The masses have performed their duties reasonably well. Now, it is the turn of those who are manning the key organs of the State to ponder if they are living up to the Constitutional mandate.”
Checks on the Judiciary
While championing the cause for a “strong independent judiciary”, CJI Ramana, emphasises a truth that is routinely ignored by those associated with the other pillars of democracy. “The judiciary is the primary organ which is tasked with ensuring that the laws which are enacted are in line with the Constitution...But the importance of the judiciary should not blind us to the fact that the responsibility of safeguarding constitutionalism, lies not just on the Courts. All the three organs of the State, i.e., the executive, legislature and the judiciary, are equal repositories of Constitutional trust. The role of the judiciary and scope of judicial action is limited, as it only pertains to facts placed before it. This limitation calls for other organs to assume responsibilities of upholding Constitutional values and ensuring justice in the first place, with the judiciary acting as an important check.”
All in all, the Chief Justice’s speech has come as a ray of hope in a time of looming darkness for Indian democracy. One only hopes that the Supreme Court now begins to show more pluck in safeguarding the values and ideals of our Constitution, which is indeed its raison d'etre.
(The writer, who served as an aide to India’s former Prime Minister Atal Bihari Vajpayee, is founder of the ‘Forum for a New South Asia – Powered by India-Pakistan-China Cooperation’. He tweets @SudheenKulkarni and welcomes comment at sudheenkulkarni@gmail.com. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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