Justice in Crisis

Hiren Gohain

It is rather ironic that at a time when the Chief Justice of India (CJI) is addressing students at New York on democracy and a senior Justice of Supreme Court D Y Chandrachud is speaking at King’s College, Cambridge on human rights and civil liberties,a vacation bench of SC here has administered an unexpected and rather uncalled-for blow to noted human rights activist Teesta Setalvad,prompting Gujarat Police and ATS to clamp umpteen charges on her and arrest her, leaving all decent citizens in shock.

The current debased American notion of democracy is merely limited to popular elections at set intervals, and civil rights be damned. Which India is of course is duly observing with a tamed Election Commission (EC) running its programme as it suits the rulers’ interests. ALL independent institutions created over decades to check the outreach of overweening power have been similarly disarmed, and consultations ensuring informed consent of the citizens in decisions affecting their lives have now been effectively choked off. That mainstream media with one or two notable exceptions pose no challenge to rampaging power of that kind is an unacknowledged shame. And this is the democracy that is being drummed up all around the world by cock-a-hoop drummers.The world listens, but not in a daze but with a smothered snigger.

The twenty-one month Emergency declared in 1975 is often recalled like a faded memento to celebrate escape from the “greatest ever danger to democracy’ while something far more sweeping and far-reaching is being imposed irreversibly with relentless steps and brutal method on the entire structure of the democratic state.

The odd and irrational stand that only the assessment of an official forensic laboratory in India that there had not been any manipulation of data on computers and laptops of certain lawyers and social activists by malicious agents is acceptable as unimpeachable evidence, ruling out clear exposure of intrusion by malware by competent and impartial foreign laboratories, is a clear sign of bias subverting justice. But that is that.

The sudden surgical strike on the MVA government of Maharashtra is yet another instance of the ruthless subversion of the rule of law in the name of law. For there is little doubt that mightier forces are in play than the visible puppets strutting on stage. It needs to be pondered why the defecting legislators cannot take a decision sitting in Maharashtra, and why they have to be flown to relatively inaccessible and fortified ‘safe’ locations at somebody’s expense. And why they are debarred from having a free and fair discussion with the top leadership of the party before they part company. Is this vibrant democracy and dissent at work?

Pitted against the legitimate heir of Balasaheb Thackeray’s political legacy and a powerful political figure in his own right, the rebels, however numerous, were bound to fumble and founder. But now that they are sure of the active initiative of mightier big brothers they are lolling at ease in royal luxury, passing their time in celebrating birthdays and such other worthy pursuits. And tell-tale signs of mightier arms already heaving to secure courts’ assent to the process of bulldozing the existing MVA government are already beginning to appear. In fact all diversities are to be levelled down to meet the requirements of a ruthless prior design. An ‘opposition-mukt (opposition free)’ Bharat.

The bigger question lurking in the background is whether the courts will ultimately resist or assist the construction of this particular vista. For builders of all such ambitions in history have always been obsessed with building and re-building on such mammoth designs. And they need some sort of fig-leaf for such obscenities. Who or what else can provide it other than the human pillars of law and justice?

Mouthing all the right slogans and working in quite the opposite direction could well be one way of wiggling it in. People have to keep their fingers crossed as the higher judiciary goes about its task. The more honest but more cowardly attitude will be to settle for a principle of thrift and austerity, sacrificing willingly the courts’ power and duty to intervene.’ This is not the courts’ business’, or ‘We are keeping strictly within our given limited territory’, might be their repeated plea to look aside as the cold-blooded but furious bulldozing and levelling went ahead targetting the many-tired structure of our state. Or squaring up to meet the historic and unimaginable challenge the judges can call a halt to the process and quietly and firmly uphold the basic structure of democracy in our country along with the fundamental rights guaranteed by it. Much depends on whether the judges choose creature comforts or the honour of their office and the freedom that service of truth and humanity bestows.

One recalls the haunting dilemmas dramatically dredged up from dark recesses of history by an old Hollywood movie, ‘Judgment in Nuremberg’. It showed German judges during the Nazi regime, some with brilliant reputation for learning and judicial insight, as and when they had to give their assent to the most, brutal, depraved, inhuman laws passed by monstrous despots, whether with casuistry, suppression of conscience, abject servitude or dull fatalism. If anything the moment of truth has arrived now and the honourable judges are not spared.

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Frontier
Vol 55, No. 3, Jul 17 - 23, 2022