At one time, cases of judicial activism had caused disquiet about unwarranted encroachments on executive and legislative turf, provoking much resentment among mandarins and the law-makers.
Now it is different in view of the caution exercised by the judiciary on issues like Kashmir and the citizenship law which have agitated public opinion at the national and international level. Activism, therefore, is almost a forgotten chapter at present, apparently providing much solace to the powers-that-be who do not like anyone breathing down their necks.
Given the dramatic changes signified, first, by the deletion of Article 370 in Kashmir following the posting of half a million military and paramilitary personnel and, secondly, by the enactment of a law on citizenship which is tilted in favour of non-Muslims, it is obvious that those unhappy with these measures have been left with no other option but to take to the streets to seek redressal.
Such an open defiance of the establishment has not been possible in Kashmir because of the massive presence of security personnel and the absence of a political leadership to give direction.
It is also possible that the terroristic background of earlier demonstrations has given the idea of protests in the valley a bad name and inhibited dissenters from coming out in the open. The linking of discontent and alienation with separatism has been another constraining factor.
Where the criticism of the citizenship law is concerned, political activists ranging from students to the elderly ladies in a Delhi locality called Shaheen Bagh, have shown no hesitation about voicing their disapproval of the law.
Since the supporters of the legislation have also held rallies, the confrontation between the two groups, which have the backing of opposing political formations, is taking place before the eyes of the people and of television cameras in cities across the nation.
What these protests and support for opposing viewpoints show is that hoi polloi sometimes have to take matters in their own hands to make their presence felt. Had the judiciary been more active, the demonstrations for and against the law might have been more muted.
Needless to say, an open society allows such overt expressions of diverse standpoints unless constraints of the kind prevailing in Kashmir prevent any articulation or there is recourse to violence by anti-social elements taking advantage of a temporary breakdown of law and order.
However, the lesson from the voices that are being raised on both sides of the divide is that, ultimately, it is the people who matter. Arguably, they place themselves outside the three “estates” – executive, legislature and judiciary – to present their cases before the nation.
In this context, the defiance of the government’s opponents constitutes the essence of civil disobedience, a concept well known in Indian history. But beyond the protests, they seek vindication from the electoral process. Mercifully, this has been a free and fair exercise in India with the result that would-be dictators had been unceremoniously ousted from power as in 1977.
It is obvious that as long as elections are able to tame the high and mighty, protesters who claim to be guided by lofty motives can take heart while the supporters of controversial official measures will know that theirs is not the last word.
But so far as Kashmir and the citizenship law are concerned, a third factor beyond protests and support as well as elections has come into play. It is international opinion, an unavoidable aspect of today’s all-encompassing globalization where the eyes of the world community and of the media are on every nook and corner of a shrinking world.
If India hasn’t come off with flying colours as a result of the scrutiny, the reason is, first, the high premium that is paid to the values of democracy and, secondly, the curious fact of the world holding India to a higher standard than any other country in the neighbourhood because of its pluralist heritage harking back to Emperor Asoka (273-232 B.C.).
While India is known to be “famously democratic”, as the British magazine, the Economist, once said, there is little doubt that the international community and, especially, the free-wheeling media abroad, are looking askance at the moment at the state of civil liberties in Kashmir.
There is also the belief that having rushed in where the angels fear to tread, the government does not quite know what to do next to restore normality in the valley by freeing the Internet and releasing the arrested leaders and activists.
As for the citizenship law, the exclusion of Muslims from its ambit militates so palpably against the norms of natural justice that the apprehensions of India’s largest minority, voiced, among others, by Hamid Ansari in his last interview as the vice-president, have been reaffirmed.
It is also known that this law will be followed by the preparation of a National Register of Citizens aimed primarily at illegal Muslim immigrants from Bangladesh, but also placing the onus on every Muslim to prove his bona fides as a citizen.
It would have required another “estate” to bridge the trust deficit between the executive/legislature and the minorities. But this isn’t the case at present. (IPA Service)
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