The analysis of a system as complex as our judiciary must come from a place of principles. The true measure of an institution’s performance cannot be based on whether its outcomes agree with one’s own beliefs or friendships. Hailing an institution when it agrees with us and chastising it when it disagrees with us, says more about us than about the institution itself.
In the last few years, especially post-2014, there has been an attempt to build up every case that a certain ideological camp deems important as a litmus test for the judiciary, among other institutions.
To a keen observer, a pattern of attacks on the judiciary is hard to miss. Political parties with the chutzpah to openly go after individual judges tried to get the Chief Justice of India impeached because he did not toe their line in a particular case. It was not just about that judge but also a message to the judiciary that their reputations would be tarnished if they did not comply. Such attacks were accompanied by silent approval from a particular set of the intellectual class.
In a similar pattern, there are more indirect variants of attacks that aim to intimidate the judiciary by attempts to create a public perception against it. The manufacturing of an endless list of litmus tests based on partisan concerns and the subsequent failure certificates handed when they do not say what we want, have the veneers of subtlety and intellect.
A rather disingenuous way of doing this is to compare apples with oranges. An illustrious judge granting bail to a high-profile journalist in a case of suspected state vendetta is the latest stick to beat the judiciary with. A closed case that has been reopened with a definite agenda of harassment is being compared with people who are in jail on cases of planning riots or cases of people aiding Maoist terrorists.
Take the example of the case of Varavara Rao. While we are told that Rao is an “octogenarian social activist” in an attempt to cast the judiciary as an oppressor in keeping him in jail, what we are not told is significant. Rao is on record justifying the killing of CRPF personnel by Maoists, saying that the security forces had no right to be there. He has had run-ins with the law for his links with extremists many times in the last decade. More importantly, he has been arrested, now, in a case where there were speeches that are believed to have incited violence, riots and loss of life.
Similarly, Umar Khalid, whose arrest has rattled certain columnists, has been arrested for a conspiracy which resulted in deadly riots that resulted in the loss of life. Neither Khalid nor Rao’s cases are of attacks on dissent, but are cases where they are accused of stoking violence. These cases are not even in the same league as the arrest of a journalist over a conveniently reopened case of abetment of suicide.
When it comes to the record of the judiciary in recent years, there is a lot of evidence of instances where it has gone against the prevalent governance worldview.
Right at the beginning of the NDA government’s term, the judiciary rebuffed the NJAC Bill. While the view from the government’s side was that the collegium system must go and give way for a system with greater accountability, it still gave veto power to the Supreme Court with the names. Yet, the judiciary struck it down and refused to accept the government’s reform initiative.
There was a wave of jubilation in a small ecosystem when the judiciary took a position against the government in the Aadhaar linking case, where some people sympathetic with the government’s view knew that this adversely impacted the growth prospects of the fintech ecosystem.
In a more directly political case, it was the same judiciary that forced a floor test in a very high stakes government formation battle in Maharashtra, seen as a loss of face for the ruling party at the Centre, in arguably the most important state in terms of political economy.
However, in none of these cases did we see intellectual voices from the losing side cast aspersions on the judiciary.
If institutions are discredited for short term gain with proclamations laden with hyperbole, we stare at anarchy.
A pen in one’s hand and the power of articulation are influential ways to shape discourse. But the majesty of such power lies in using it with care and caution, rather than indulging in exaggerated assertions of “barbarism”. Going too far in discrediting institutions driven by partisan considerations only serves to cut the very branch of freedom that we are sitting on.
The writer is a senior lawyer based in Mumbai and managing partner, Parinam Law Associates
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