The attention of the media and the interest of commentators (some erudite,mostly foolish) has been entirely on what the judges have said. The content of decisions is no doubt important. But the real winner in the current situation is the process by which the decisions have been arrived at. All parties,however,remotely associated with Ayodhya have had more than ample time to implead themselves,hire lawyers,present evidence and make arguments. The judgment is 8,500 pages long. Wonder of wonders it was kept secret till the end. None of the judges told their spouses or their friends about it. The stenographers and the typists kept it under wraps. Fortuitously or otherwise,two judges have Hindu names and one has a Muslim name. There is a dissenting judgment (that prerogative of democracies); the majority judgments while concurring with the final decision nevertheless are two long documents with different threads of reasoning,again representing an approach which is uniquely democratic. The only complaint we can have is that the process was too slow; it just went on for too long. And then maybe that is not such a bad thing a judgment in 1949 or in 1993 may have had to confront too many raw passions in the air. I am not making a case for dilatoriness or delays in justice (one of the most unjust features of our society) but there may be some exceptions to the rule and this just may be one of them.
I was talking recently to a friend of mine who is an independent director on the board of a company. A senior manager of the company,who my friend knows well and respects a great deal,was accused by a whistleblower of being guilty of sexual harassment. My friend was horrified that he had to deal with a case,at least nominally impartially,when he was quite certain that the individual concerned was a fine fellow incapable of what he was accused of. Luckily my friend was not called upon to make an instant judgment. The company is a sensible one and they had a well-prescribed process to deal with sexual harassment matters irrespective of whether seniors or juniors were involved. The process took on a life of its own. Committees were constituted,evidence was examined,memos were written,files were created and all this seemed to take up an unfairly long time. But guess what my friend and his fellow-directors were not required to make any snap judgments the process automatically threw up enough material to suggest strongly that the so-called fine fellow was guilty of impropriety at a minimum and he left on his own. The directors did not have to deal with whether the impropriety amounted to misconduct which deserved dismissal. Literally,the process saved the participants from making any decision,let alone a wrong one.
The expression due process has become synonymous with societies which attempt to manage their affairs in a civilised way. The whimsical decisions of a tyrant or a small coterie of tyrants who need not listen to the views of aggrieved parties may in fact on many occasions turn out to be qualitatively the correct decision. But such actions lack moral legitimacy and inject a disruptive venom into the system which over time destroys the vitals of even the most glorious empires. In 1947 and in 1950,most intelligent (!),well-informed,neutral observers,especially the efficiency experts predicted that the first republic of India would not survive for long. They warned us of break-ups,civil wars and accompanying famine and privations. They have been proved wrong not because the content of all the decisions we have taken have been of a high quality; in fact many decisions have been stupid and wrong. But by and large,the way in which we have tried to govern ourselves,i.e. the process we have chosen has held up. Judgments which surprise many of us,and which faithful stenographers and typists keep a secret (I am still amazed by that) and which maintain the creative tension between the executive and the judiciary are part of this wondrous process. On that note,I suggest that we pipe in hesitantly and softly with two cheers for the Indian Republic.
jerry.rao@expressindia.com
