By Nilotpal Basu
The process of decolonisation in India was initiated, and the Constitution was drawn up, to ensure an equilibrium based on the principle of checks and balances between the three organs of the state – legislature, executive and judiciary.
The atmosphere of hate mongering in the present times, driven principally by Hindutva, is entrenched in the notion of othering, not just on the basis of religious denomination, but many other identities which is natural for such a diverse society like India. This is a clear departure from the foundational basis of common but equal citizenship as enshrined in the constitution. Therefore, it is also clear that when Hindutva has emerged as a dominant ideology which prevails over the direction and thrust of the legislature and the executive, the judiciary is bound to be affected. The constitutional scheme has envisaged the judiciary as the custodian of constitutionality. However, the ideology of governance is eventually subverting this well-established principle. Therefore, what we are witnessing is a very serious subversion of the judicial principle, often from within.
Without a judiciary at all levels committed to the republican constitution, amidst the pressures brought up by the ideological hegemony as expressed through the actions of the legislature and the executive, the sustenance of the constitutional scheme itself has become growingly precarious. One of the biggest examples of the breakdown of judicial restraint on not just the two other organs but on itself was Chief Justice Suryakant’s dubbing of unemployed youth and lawyers pursuing Public Interest Litigations as cockroaches. It is however heartening that the only antidote to such a degeneration is that the public space and public support has attempted to reclaim the constitutional space. The cockroach remark has provoked the defence of the right to protest and make the executive accountable. The moral high ground of the movement over an issue so vital for the health and integrity of public examinations is proving to be a thorn in the flesh for the rulers.
Another important decision of the judiciary where again the Chief Justice was personally associated was the large scale disenfranchising of people, who were denied of their constitutional right to vote. The judiciary’s preference of arbitrary decision of the Election Commission as a question of its independence against such a huge exclusion of voters and their constitutional rights, in a way, has contributed to the undermining of the constitutional scheme. The question of accountability of the Commission went missing and bereft of that, the independence of the commission’s actions can only lead to tyranny to suit partisan political interests.
Earlier Chief Justice Chandrachud himself had spilled the beans in a public interview that Ayodhya verdict was definitely based on the belief of those who had indulged in violence to bring down a mosque. In other words, order was passed, but it failed to deliver justice. If the judiciary itself concedes this ground, how can rule of law survive, not to speak of the constitutional order?
But what is heartening is that in the lower judiciary there are courageous instances of judicial pronouncements by its presiding officers. Judge Tabassum Khan’s pronouncement of life sentence for seven men, in a 2022 lynching offence in Madhya Pradesh sparked an online hate campaign, shifting focus from the verdict to her religious identity. The backlash, including communal abuse and death threats, led to police protection and suo moto intervention by the High Court. Thankfully the legal fraternity condemned the intimidation, warning that such attacks undermine judicial independence and erodes trust in the rule of law.
The order was passed after careful consideration and completion of the due process of law. Significantly, the abusive social media posts had nothing to do with the court’s findings. Therefore, the order actually has inspired the legal fraternity as a whole with senior advocates, bar associations, politicians and civil society groups coming out to express solidarity with the judge, describing the issue as a ‘serious matter’. A Division Bench of the MP HC has observed that such threats ‘directly hamper judicial independence and fearless working of judicial officers.’ The bench also directed the State’s DGP and Additional Chief Secretary, Home, to apprehend those responsible for the threats and also ordered that the police protection for the judge should continue. The President of the Bar Association where Judge Khan works has questioned the absence of a substantial institutional action. It is a case in point that the verdict was for the mob lynching by the so called ‘gaurakshaks’ which led to an actual death.
Another piece of a shining display of constitutional principle was by Justice Madhav Jamdar who came down heavily on the Mumbai Police for passing an externment order against the petitioner who challenged the basis of this action. The court asked “Petitioner has just raised slogans like ‘BJP government murdabad, Amit Shah murdabad…’ Why can’t citizens raise such slogans? Why externment orders for such slogans?” Justice Jamdar further remarked orally; “What is this? All citizens are being made slaves of India government… They cannot stage protests, they cannot agitate. What is all this? Now so many papers have been leaked. If people protest, you will slap cases… What is this? It is the right of the citizens to protest…” He went on to further assert, “Police isn’t the servant of the Chief Minister or the Prime Minister. They are public servants… I am going to impose hefty costs on your officers.” Incidentally it is the same Bombay High Court which had forced the Bombay Police reverse its action to impose a ban on the protest rally over genocide in Gaza organised by the CPI(M).
Earlier, Justice T. S. Sivagnanam who headed one of the nineteen tribunals hearing the appeals by citizens who were disenfranchised under SIR in pursuance of an order by the Supreme Court itself, found that of the 1777 names deleted for which appeals were heard by him, 1717 were wrongly deleted. This amounted to 96 percent. If this was computed to the number of voters who were unable to cast their vote due to a process that was inherently flawed, it would be a whopping 25 lakhs. It has been widely anticipated that for disposing all such applications, 20 to 25 years would be required. Unfortunately, the highest judiciary did not find the SIR violative of constitutional rights despite such brazen flaws.
We have reached a critical threshold where judiciary is operating in the backdrop of a marauding Hindutva ideology weaponised through legislative and executive actions. Public spaces and public protests appear to be the only meaningful point of resistance to salvage the constitutional scheme. But whether the judiciary would find the courage to provide support to such public actions is the million dollar question. And, such shining examples of Judge Khan, Justice Jamdar and Justice Sivagnanam can be replicated to repulse the attacks and work to provide relief to citizens. This is vital for salvaging the independence of the judiciary itself. (IPA Service)
