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Law

A New Custodian in the Supreme Court: A Hope for India’s Broken Democracy?

Justice Ramana takes over as the chief justice of India at a time when democratic freedoms have been clamped down, indeed the right of habeas corpus itself has come to be in jeopardy.

Those of us who are now past three score and ten, and still unaffiliated to this party or that, can testify to the fact that there was a time when the common man in post-independence India had the faith that the systemic arrangements of our democracy would answer to his just cause.

There is a recorded case when Jawaharlal Nehru asked a public gathering in Madhya Pradesh in the 1957 general elections not to vote for his own party candidate when told that the man was corrupt.

That was also a time when the speaker of the Lok Sabha could reprimand even a Nehru for the slightest infringement of parliamentary practice and would be dutifully obeyed. Also well to recall that the first prime minister of the republic never missed a day in parliament and carried his own files to the house tucked under his armpit.

Nor did he ever once pull rank over his senior-most bureaucrats if and when they differed with his wishes within the jurisdiction they had.

In course of time,  we also experienced the redoubtable T.N. Seshan who gave no quarter to anyone in the matter of electoral probity and procedure.

Also read: As CJI, Justice Ramana Needs to Act Like Former Election Commissioner T.N. Seshan

And renowned editors of newspapers who spared no one in government or the corporate world when they were known to seek to subvert the democratic system or the non-discriminatory operation of the rule of law.

An era when a Nehru could say to an Atal Bihari Vajpayi after the latter’s maiden speech that one day he would be prime minister of India.

As to keeping dictatorial tendencies in check, there was the early instance of an article that appeared in the Modern Review of Calcutta in 1937 upbraiding Nehru for his dictatorial predilections—until it was found that the said article was penned by  Nehru himself!

Alas, that was then.

Incrementally since that time that common faith of the common citizen in the probity of the republican  promise has seen a nose-dive.

The politician, the bureaucrat, the investigative and prosecutorial wings of the state, even parliament and the justice system in many instances have since forfeited the trust of the hoi polloi that the political, administrative, and law-enforcement mechanisms remain above fear or favour.

Governance has come to be seen as an executive function to protect and promote the interests of congenial corporate and ruling party satraps. And to subjugate, in one way or another, all those who hold contrary views.

Supreme Court of India and Justice Ramana

In all this sad decline, the hegemony of “we the people” who the Preamble says “give ourselves this Constitution” over the provisions and promises of that document has practically vanished.

And it is for that reason that the Supreme Court of India, much as Jehangir’s durbar used to be, has come to be regarded as the only remaining bastion of the constitutional/democratic order from where justice may be procured.

The Supreme Court of India. Photo: PTI.

Yet, sadly,  over recent years, that court of final appeal has also given cause to lament that all may not be well there as well as some highly reputed senior officers of the court have been pointing out publicly.

There is reason to believe that Justice N.V. Ramana, who has now taken charge as the new chief justice of India, is seized of this destabilisation of faith in the highest court, and has reportedly set to work on repairing its operations from day one.

What encourages hope is that Justice Ramana has been party to verdicts that lean towards reinstating the primacy of common rights and common aspirations, such as making the office of the chief justice open to RTI enquiry, lifting internet curbs in Jammu and Kashmir, and ordering fast track courts in the matter of cases of malfeasance and criminality on behalf of MLAs and MPs.

As to the constraints of an extra-judicial kind on justices, Justice Ramana and the fraternity of the highest court may consider the following:

In the oldest democracy of America,  judges to courts, including the supreme court, are nominated by the political executive first before they are ratified by Congress.

Also read: Now CJI, Justice Ramana’s Elevation to High Court Once Came Under Supreme Court Scanner

Clearly and explicitly, such nominations are made on openly stated ideological grounds.

The former president of America, Donald Trump, thus had some three hundred judges appointed to various courts, including as many as three new ones to the supreme court – obviously with an eye to the protection of his desired political-ideological goals.

And, yet, look what happened. Trump took his spurious challenge against the results of the last Presidential election to as many as 65 or so courts and lost in all but one, many at the hands of judges he had appointed.

Nor was he able to pull off his will with state-level bureaucrats of his own party, for example in Georgia, who refused to concur with his depraved wishes to subvert the vote count in his  favour.

Contrarily, here in India, Justices of the supreme court are nominated by a collegium of the judges themselves and sent to the government only for proforma comment and concurrence. The law as it stands clearly has it that such nominations have to be agreed to by the executive if the collegium disagrees with the observations of the executive. Thus, in contrast to the American system, an area of independence in the matter of appointments remains institutionally in place.

This is why many wonder why there should ever be any questions raised about the procedural or substantive determination of cases which involve the government of the day, or parties known to be in its favour.

As has been pointed out often in recent months, the polity at large is askance as to why cases as crucial to democratic faith as those pertaining to electoral bonds scheme, the Citizenship Amendment Act, the reading down of Article 370, for example, should still be hanging fire in court priorities, especially when the prime minister who is rarely to be faulted himself quite recently taught school examinees how they must tackle the tough questions first.

It is true of course that judges to the supreme court of America get a life-long tenure and thereby feel safe in regard to any disadvantages that may follow were their tenure to be age-restricted, as it is here in India.

But, surely, barring some instances, it is the people’s faith that honourable justices of the highest court cannot be bothered about how their verdicts may bear on their post-retirement concerns and interests.

Justice Ramana takes over at a time when, like devotees, the people at large look to a reprieve when practices of equitous and transparent governance, of prosecution, of policing, of institutionalised corruption in electoral funding, of retributive modes of administration, and unjust and undemocratic clampdowns on citizen’s fundamental right to free speech, to peaceful assembly and protest, and to privacy, indeed the right of habeas corpus itself have come to be in jeopardy.

We may give due credit to some lower courts who have in recent months shown a sharp awareness of the deterioration in the safeguarding of the constitutional regime of citizen’s rights and unprejudiced implementation of laws—for example, in the matter of the  North-East Delhi Riots—and have stood their ground against prosecutions patently fraudulent and coloured.

So also some high courts which have refused to grant prosecutorial pleas that seemed to them in law without due basis and cavalier in intent to the detriment of fundamental rights.

All that must give Justice Ramana great heart that, should a boldly fair-minded leadership be forthcoming from the highest court, not all may be lost.

Millions of disempowered citizens, therefore, look to retrieval from a continuing bad dream, and wish Justice Ramana all the blessing any upright and fair-minded head of the Supreme Court deserves.

Ever since the framing of the constitution, it has been the republican understanding that the Justice system was conceived primarily to protect the due rights of the citizen from the excesses of the state. Over the years  this understanding seems to have come to be reversed. It is now as though it is the state that needs protection from the articulate citizen.

What could be more a travesty.

Badri Raina taught at Delhi University.