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“They have promised to hold a quick trial so that whoever is innocent would not be harmed.”
“You still believe in those lies, Grandpa?”
∼ Naguib Mahfouz, The Day the Leader Was Killed
If the rather intemperate reaction of the young and inexperienced Union law minister to the Supreme Court’s ruling in the sedition law case is any indication, Chief Justice N.V. Ramana has his task cut out for him before demitting office in August. Having signalled that the apex court has returned to its indispensable obligation to hold the feet of executive authority to constitutional fire, the chief justice has to provide the requisite leadership to the judiciary to ward off defiance and offensive from a wayward ruling coterie that refuses to awaken out of its dogmatic slumber.
Technically, the court only had before it the alleged untenability of a section of the Indian Penal Code – but everyone from the eminent attorney general for India to the utterly partisan solicitor general to the lowly police inspectors knew that the case was not about “seditious” activities. None of the petitioners can remotely be suspected of lacking in patriotism or accused of wanting to promote and countenance “sedition” or any anti-national activity. It had to do with the extent to which the executive – meaning the ruling clique of the day – will be permitted to use a draconian provision of the law against any of its political opponents whom it may find an intractable rival.
It can be suggested that this very consequential ruling inevitably flows from the distinction Chief Justice Ramana made a few months ago, from a public platform, between ‘Rule of Law’ and ‘Rule by Law’; on that occasion, the chief had reminded all of us that democracies elect rulers, not tyrants. He was only reaffirming the essence of the democratic arrangements as envisaged in the Constitution of India. The chief has now brought that clear-headed thinking to bear in this sedition business, and it should be a matter of satisfaction to him that the three-judge bench has produced a unanimous verdict.
What needs to be underlined is that as chief justice, Justice Ramana has not once given any impression of wanting to get into the politicians’ quarrels; nor has he been unmindful of the national security concerns and imperatives. The Supreme Court has made it clear that it cannot be its intention to create any kind of systemic turbulence.
All he has done is perhaps to gently nudge his colleagues back from the jurisprudence of complicity produced by two of his immediate predecessors. He seems to have reminded his fellow judges that the Supreme Court is not in the business of pleasing or displeasing the executive; it has one and only one obligation: to insist and ensure that institutions of power and authority operate only within the four walls of the constitution and its protocols of restraints and constraints on arbitrariness.
The sedition ruling carries with it an implicit acknowledgement of the basic need for equilibrium in the polity, as it carries within it new coordinates that the high courts and the lower judiciary will need to re-assert the primacy of constitutional values and virtues. Also implied in the sedition ruling is a refutation of the assumptions, assertions and attitudes of the demagogues, just as it is a refusal to concede to the mob the right to determine the shape of constitutional arrangements and commitments.
Perhaps the most critical element is the court’s unwillingness to defer to the claims made by the Union government on the need for extraordinary deference to the prime minister’s thinking and presumed wisdom. A politician who regularly, routinely and cynically takes liberties with facts and figures cannot expect more than the formal institutional respect due to his office. But Narendra Modi remains trapped in the rhetorical paraphernalia of his own personality cult.
No one in the durbar is able to tell him that every time he relapses into his old familiar and comfortable role of a cheap demagogue, he loses a chunk of respect from overseers of other institutions. Instead, the new durbaris, led by the redoubtable home minister, are busy serenading 20 years of Modi’s “public service”. If nothing else, under Chief Justice Ramana the court seems to have snapped out of the demagogue’s spell.
The sedition ruling has come at a time when the need to strike a balance was never more urgent.
The ruling clique has committed too many excesses of omissions and commissions; it has taken too many liberties with civilised norms and democratic values; and it has let loose too many official agencies against the citizens and civil society to convert India into a virtual police state and a coerced nation.
There can be little argument that in recent years, the court has failed the nation and the Constitution in performing its role as a guardian of a level playing polity. As a result, an extremely unhealthy lopsidedness has been allowed to define the polity: the lumpens own the street; the policemen and the prosecutors own the criminal justice system; the RSS owns the ruling apparatus; the BJP owns the electoral bond market; the hate-mongers own the air-waves; the rapacious capitalists own the policy-making process; and the prime minister owns the nation’s narrative. On the other hand, all the countervailing sites – the Parliament, the critical media, the civil society and the judiciary itself – have been rendered ineffectual. We are almost flirting with the familiar third world authoritarianism of the 1970s and the ’80s.
The sedition ruling has come at a time when the mobs and the manipulators of communal appetite are corralling the polity into an ugly corner at the expense of our collective sanity and common sense. The ruling, in essence, holds that neither the quest for fairness and justness, nor the imperative of democratic space and dissent are crimes to be sorted out by the policeman, but are essentially the inherent privilege of an Indian citizen.
Having replenished the judiciary’s moral energy, Chief Justice Ramana and his colleagues will need to help the nation work its way back towards a healthy democratic constitutional arrangement.
Harish Khare is a journalist who lives and works in Delhi.