Will Retired Supreme Court Judges Stand Up and Be Counted?

It remains to be seen whether in the months to come, Indians inebriated on bloated claims of supremacy will see the light before darkness closes in irretrievably.

Democracy seems now to be pushing back against autocracies in unlikely places.

In the country most beloved of India’s fast-forward classes who tend to support Hindutva politics, Israel, a new law sought to be passed by the Knesset, designed to subordinate the judiciary to the executive, has had to be “paused” in the face of unprecedented people’s protest.

Israelis across the board, including sections who favour hard-nosed policies when it comes to Palestinians, have pushed back with unbelievable doggedness to oppose an attempt by the executive to usurp the constitutional powers of the judiciary.

It may be noted that Israeli Prime Minister Benjamin Netanyahu is currently facing a court trial on charges of corruption.

Most Israelis see the new legislation as a crude move to thwart his possible conviction.

Indeed, in the oldest (sic) democracy, the United States of America, something even more unprecedented has just happened.

There, a grand jury has indicted ex-President Donald Trump for hush payments to an adult movie star during the presidential election campaign of 2016 made in an illicit way.

Trump may yet be indicted in one or two other more severe cases – one for soliciting unlawful voting favours from electoral officials in Georgia, and another relating to the insurrection of January 6, 2021 which is widely seen as having been egged on by him.

The Indian prime minister’s endorsement of him (‘Ab ki baar Trump sarkar,Modi had said to his beloved NRIs in a public meeting) on American soil does not seem to have helped him any either.

Clearly, be it the colonising state of Israel or the mightily presidential United States of America, events have shown that their investigative and prosecutorial agencies spare no one, however high they be.

None of that, however, seems to dent official hubris in the Republic of India.

Kiren Rijiju and the judiciary

It has been evident for some time that the Modi government is in a running spat with the judiciary, especially the Supreme Court. This fight is today being fronted by Kiren Rijiju, the Union law minister

As with the Israeli government, it is his wish that the executive ought to have a decisive role in the appointment of judges to the higher courts.

The judges have sought to push back with the argument that the independence of the judiciary is a cornerstone feature of the “basic structure” of the Constitution, and any tampering with that principle cannot but compromise the last resort for justice of the citizenry.

The honourable law minister, however, is a persistent and determined man, and his articulations bear little restraint.

He has now claimed that some retired judges of the top court have been members of an “anti-India gang”.

No names have been named, yet.

We recall that a couple of years ago, four senior judges of the Supreme Court had taken recourse to an unprecedented collective press briefing in which they shared their view that “democracy is in danger in India”.

The question that many concerned citizens ask is this: will retired judges of the top court now come forward to be heard on the issue of the allegation made against some of them by the law minister of the country?

Also, will a constitution bench of the top court now comprehensively speak to the matter of what constitutes “anti-India” activity, although judges have several times made it known that criticism of the executive, or the prime minister, does not comprise anti-India activity?

And will they also take note of what has happened in a Lahore court in neighbouring Pakistan, where the colonial sedition law has been struck down by the court? India’s Supreme Court, in May 2022, held the country’s sedition law in abeyance but did not actually strike it down.

Democracy and ‘We the people’

When Ghulam Nabi Azad some months ago was anguished that the revoked Article 370 could be restored only in one of two ways, either by parliament or by the Supreme Court, this writer had suggested a third way of pressing the point. A practice that seems now to have atrophied in India, this third way comprises, of course, the citizens’ fundamental right to mount peaceful mass protest on behalf of public demands.

Imagine, the good old Zionists in Israel understand this rather more forcefully than we do in a liberal democracy authorised by the finest of emancipatory constitutions.

As stated above, if the militarist Netanyahu has been compelled to “pause” his cavalierly autocratic legislation by the power of the democratic street, why may not the undemocratic excesses of the executive here in India be similarly amenable to the collective voice of “we the people” who, after all, only wish to see an unimpeded continuation of constitutional rule guaranteed by the full separation of powers and the breachless independence of state institutions?

It remains to be seen whether in the months to come, Indians inebriated on bloated claims of supremacy will see the light before darkness closes in irretrievably.

Badri Raina taught at Delhi University.