Erosion of judicial objectivity seems a possibility when we consider the impact of extreme judicial restraint, if it is indeed that, on society. Events seen include mob lynching, vigilante groups harassing students wearing hijab, bulldozing without trial of houses of people accused of offences, etc. All of these present an astonishing picture of rogue elements running riot. Both non-state actors as well as State actors, acting with impunity and not disciplined by State intervention, adopt copy-book action transplanted from another State’s atrocities in another part of the world. Non-state stormtroopers have free run, enabling “plausible deniability”. One wonders what it is that prevents the State exercising jurisdiction over the matters in question from taking cognisance of these events, issuing orders prohibiting such action except in accordance with law, following due process of law, taking punitive measures against rogue elements including in officialdom. Failure to do this clearly suggests an abdication of authority and a failure to exercise jurisdiction where it exists. A malfeasant State, when incidents requiring action on its part are brought to its notice, lapses into convenient inertia. Allowing the happening of events which it is your duty to prevent, where there is a duty to act, and action is not taken, is no different from abetment of the offences in question.
Official control of armed might
All armed and paramilitary units of the state are controlled by command mechanisms at the top of which sit people who implement policy. Where State policy is hostile to a section it is clear what policy would then find implementation, as we see in some Northern areas of the country. Where does the citizen then go except to the judiciary ? In the case of actress Kangana Ranaut Bombay High Court not only held improper demolition illegal, it ordered compensation to come from pockets of rogue officials. One is tempted to ask, are Constitutional directives applicable in Maharashtra not so in Uttar Pradesh? Or do private views of judges colour decisions in different Courts of the same country?
Judicial inaction…
What does reluctance of the judiciary to proactively step in and suo motuhalt events that have no explanation other than attempted ghettoising of a community, forcible removal of apparel of girls and women by vigilante groups, State-orchestrated targeted demolition of houses of persons accused of offences even before they have been tried and found guilty, show? Throwing due process of law to the winds and doing it with impunity causing drastic material harm not just to the rights of a segment of the population, but incalculable harm to the Constitutional fabric as well as to India’s image internationally, accompanied with political rhetoric weaponizing and energising groups hostile to that segment of the population, constitutes “judicial restraint” so extreme, if allowed progression this lends credibility and justification for concluding the judiciary finds such acts unexceptionable. No judiciary can find agenda-driven unconstitutional actions sustainable, for then who is to uphold Constitutional guarantees of equality, of liberty, of property ?
Conversion a camouflage to control demography
Segments of the population are attempted to be restricted to ghettos, religious identifiers seem to be the basis on which selective state action is taken, religious conversion is prohibited to ensure that the numbers of that segment of society carrying that religious identifier do not increase (because that would reflect the number of votes that could be cast by that segment). Massive amounts of money are spent on Judicial Commissions eliciting recommendations such as those of Justice Sri Krishna, reportoften cited to show how independent of government control the judiciary is. No recommendations of commissions implemented, suggests a State that wants to project an image of an independent judiciary but directives of that judiciary inconvenient to agenda-driven elements of the State do not find implementation.
Bankruptcy of Western Civilizational philosophy
Turning to the ongoing ICJ proceedings between South Africa and Israel, a UN finding Israeli settlements illegal and requiring dismantling was ignored by Israel. Are there parallels? Interviews of Israeli spokespersons and ministers being quoted, it was argued these statements of politicians established the actions of Israel were not incidentally genocidal but were acts of genocide committed with genocidal intent. These interviews elicited the stand that even if ICJ issues interim directions against it, Israel would not comply and ignore those directives. Clearly, Israel as a state considers itself either above international law or entitled to ignore with impunity any directives the ICJ might issue knowing there will be no effective measures against it, for it has the support of countries like the USA, the UK, France, Germany, etc. The support of these countries, if Israel is found guilty by the ICJ, makes all these countries abettors to and equally culpable for the offence of genocide.
The situation at home
Applying this reasoning at home we find that there are vigilante groups, rogue elements within the state, legislators and parliamentarians who find it possible to indulge in anti-minority rhetoric destructive of the rule of law. These cause apprehension in the minds of not only minorities but also positively thinking elements of the majority as to where the country is headed. Since these groups, legislators and parliamentarians do what they do with cameras focused on them knowing that whatever they do and say is going to be available in the public domain, they actually seek notoriety by these means. Immunityfrom consequences manifests State patronage. Given that patronage, judicial reluctance to act suo motu acquires dangerous connotations inasmuch as it affords them insulation from legal process placing them and above and beyond the law. The specious argument “courts will take cognizance if someone were to bring these matters to their attention by filing a proceeding” is hollow. The court’s duty to act suo motu to negate the appearance of immunity with which these actors go about indefensible conduct is of a much higher degree when the situation and the circumstances are such that people are afraid to even come out openly seeking judicial intervention. Considering attacks on individuals who dare raise their voice against the flow, their entitlement to the protection of the court’s process is not only that much greater, it is that much more immediate.
Intellectual bondage
We increasingly see this where critical thinking is considered an act of hostility, criticism of the governing groups or their policies is considered seditious or treasonable, and at the drop of a hat people are called anti-national despite the extremely patriotic intent with which they seek to ensure the continued cosmopolitan composition of the country and the integrity of its constitutional processes. Think-tanks and institutions constituting checks on abuse of power, find people sympathetic to a specific ideology foisted at their heads ensuring emasculation. Licences of organisations receiving funds from abroad are cancelled on grounds that they violated the terms of those licences while these organisations claim they complied with all conditions and the reason their licences are being cancelled is because they are critical of the State.
Positioning your own man as chief examiner!
Articles 331 and 333 of the Constitution create reservation for Anglo-Indians in legislatures and parliament. The reason is that if Constitutional rights given to an Anglo-Indian group are to be properly implemented it is necessary to have representatives of that group in the bodies that oversee implementation of those provisions. The logical corollary of this would be that where rights are guaranteed to minorities, persons belonging to the minority groups in question who are interested in the furthering and implementation of those provisions should be the persons in control and not people who are either from other groups or those who only pay lip service to those provisions and sit by allowing budgetary allocations to lapse. More and more in recent times we see that persons within a group who are not representative of that group are cherry-picked to be placed in positions in that group knowing they will not further the agenda of the group which they are supposed to represent but will in a surreptitious way toe the line of a majoritarian administration which is actually hostile to that group.
Anti-national and anti-Constitutional
What this means to a nation which wishes to emerge as a Vishwa Guru is obvious and while I am not a judge, a political commentator or a social scientist, as a thinking citizen of the country desiring the best for it, I hope that light prevails before the downhill slide accelerates and acquires momentum to the point of no return. Are those who place on the constitution an inclusive interpretation which is consistent with what the initial contract between people was which ensures that the basic fundamental rights guaranteed to every section of society have their full play without restrictions by the State or by elements whom the state does not seem to be willing to discipline or control anti-national ? Or are those pursuing a different agenda who were till a decade and a half ago considered the fringe, who seek to throw out the Constitution and replace it with one that is exclusivist and supremacist but today constitute the mainstream, anti-constitutional?
This seems to be a conflict between those who are called Anti National but are patriotic to the point where they are willing to risk personal marginalisation and other forms of exclusion and those who are so hostile to the constitution that they call it a foreign document and not representative of what India stands for. In this conflict, effectively a conflict of ideology between a large group which takes an exclusivist supremacist viewpoint and a smaller group which is effectively under siege, the duty and role of the judiciary is cut out and clear for everyone to see.
The judiciary has the power the capacity the jurisdiction to control all this and bring all rogue elements to heel ensuring that the integrity of the constitution and the full play of its provisions continues to lead India into a brighter and better future. Future judicial pronouncements can convey reassuring determination and intent, or suggest restraint in exercise of jurisdiction which can threaten the Constitution. The coming months may give us answers. Whether those lead us into the light of a Constitutional vergegenwärtigung, or herald Milton’s ‘O !Dark !Dark !Dark ! Amid the blaze of noon’ remains to be seen.
The 2002 a former PM saw, shocked him enough into despair to say:
Geet nahiN gaatahooN / Sachh se bhay khataahooN
Benaqaab chehre haiN / Daagh bade hgahre haiN
Toota tilism aaj
Sach se bhay khaataa hooN / Geet nahiN gaata hooN
A positive hope-filled view seemed necessary, and so I wrote a response:
Geet ab bhi gaata hooN / Aur sach ko galay lagata hooN
Dhoop se kabhi sachchayi ki / Bhay nahiN main khaatahooN
Daagh yaqeenan gahrehaiN / NaqaabauN say dhakay chehrey haiN
Dhakay huay jo chehreyhaiN / Wohi toh zulm kay pehrehaiN
Tilsm nahiN ae mujrim raaj / Insaaf ka waham toota aaj
Nafrat ko hawa deyjaathey jo / Din meiN andheraa karjatey woh
Zulm ka saath nibhathe jo / Khud zaalim ban jaathe voh
Bandhaa huaa jo zameer hai / Kalko who khul jaayegaa
Zulm ko koi aur nahiN / Khud uska zaher mitaaye ga
Mitaadey raat kay andhere jo / Woh diyaa hum jalaayeNgey
Tumharey haath jo doob rahi / Voh kahshti paar lagaayeNge
Juda karo tum kitnabhi / Sab insaan mil jaayeNgey
Geet hum kal bhi gaayeNge / Bhay nahiN hum khayeNgey
Jai Hind
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