It is a matter of considerable satisfaction that the Chief Justice of India has clarified that he had been misunderstood and misquoted and that his ‘cockroaches’ remarks were directed only against those who are suspected of having fake law degrees. As the presiding deity of the judicial fraternity, the CJI is entitled to the benefit of the doubt. What remains problematic, however, is his Lordship’s invocation of the idea of ‘the system’ that needs protection from attacks by ‘parasites’ or other similar undesirable entities. It should be stated bluntly that in India there is no ‘system.’ We only have the constitution of India. This distinction is too fundamental to be allowed to be so glibly blurred by their Lordships.We can speak of many systems. The underworld is a system. Mafia is a system. The Rashtriya Swayamsevak Sangh is a system. The Congress party was long ago diagnosed by Rajni Kothari as a ‘system.’ We have a caste system. We can talk of an examination system, informally manipulated by Kota-based entrepreneurs. Hawala is an example of a very efficient system for underhand financial transactions. And so on. The idea of a ‘system’ carries with it a suggestion of something formal and organised yet operated informally. Not an open arrangement; a kind of networked, personalised relationship of obligations and privileges. A system’s rules and regulations are malleable, and are subject to the whims and fancies of the godfather or an emperor. There is something smelly about every system. A ‘system’ does not pretend to be predicated on moral values and ethical principles. Nor does a ‘system’ care much for justice. Its working principles are guided by transactional efficacy. Whatever works will do. There are no first principles.We need to remind ourselves that what came into force on January 26, 1950 was not a ‘system’; it was a compact among the people of India, laying down how we would govern ourselves, and, that the only source of legitimacy which would be recognised is the constitution of India. And that document enshrines the aspirations and values of an ancient social order that was finding its own civilisational moorings.Ram Jethmalani, a former law minister and an eminent lawyer who was often dismissed by his detractors as a maverick (but no one said he was not brilliant or that he did not know his law), once pointed out a vital distinction: “India is not a mere democracy. It is something much more. It is a constitutional democracy, and the Preamble to our constitution calls the nation a Democratic Republic. There is a vast difference between the two, which many laymen as well as legislators and bureaucrats do not understand. In a mere democracy, the majority of the elected representatives of the people constitute the sovereign. In a republic, the power of the majority to lay down policies and promulgate laws is subject to severe restrictions, and these restrictions are the parameters of the sovereignty of the individual citizen.”Over the past decade, this distinction between majority-rule and a constitutional democracy has gradually disappeared. The Modi government has degenerated into a ‘system’ that finds the constitution and its constraints an irritation and a nuisance as it proclaims itself as our protector against ‘enemies’ and promises to be ushering in ‘vikas.’ And, the higher judiciary, under successive chief justices, has unprotestingly fallen in line with the Modi regime’s arrogant presumptuousness. This lazy acceptance of the Modi regime’s maximalist claims against the citizens – either in the name of ‘national security’ or ‘vikas’ – has hollowed out our constitutional democracy. So much so that any citizen questioning the priorities of the ‘system’ – an arrangement increasingly rigged in favour of the oligarchs and other super rich – is dubbed an ‘urban Naxal’ and gets relentlessly subjected to state-sanctioned coercion. If a Sudha Bhardwaj attends a meeting at Mumbai Press Club, the National Investigation Agency seeks, with a vengeance, cancellation of her bail. It was not for nothing that Friedrich Nietzche called the state the “coldest of all cold monsters.”It is easy to suggest that the Modi regime has used its power to make appointments to the higher judiciary – never mind the collegium arrangement – to install an entire slate of pliable and manageable judges; but this is not a very helpful argument. In recent years, whenever there is a new Chief Justice, desperate democratic and progressive quarters raise their hopes that the apex court would now restore some kind of a balance between an authoritarian system and the citizens. Very many honourable ‘chiefs’ have come and gone but the much yearned for equilibrium remains elusive. It would appear that perhaps no one wants to rock the ‘system’.And, the ‘system’ is spreading its tentacles deeper and deeper into the commonwealth. The advantage belongs to the powerful and the rich, who have scant regard for ‘public purpose’ or ‘social welfare.’ When Chief Justice Surya Kant spoke of protecting the ‘system’ against ‘parasites,’ he was, hopefully, not casting himself as the partisan of the vested interests.Perhaps the CJI was an unwitting victim of a jurisprudential bias that has steadily crept upon the higher judiciary: that the purpose of law is to protect the status quo, and, that the law and other organs of order must guard against social disruptions and economic upheavals. On the other hand, Dr B.R. Ambedkar’s constitution encourages citizens to stand up to authority and to demand that the values and rights sanctified in that constitution be respected. It is the primary task of the judiciary to sort out this inherent and designed tension – not just a task but a duty, an obligation that the ‘system’ believers are disinclined to undertake. And, that is the rub.Harish Khare was editor-in-chief of The Tribune.