Related Stories Test of wisdom, not legality

 An array of cases have raised strong questions about on the rule of law in our democracy. The rule of law is the bedrock of all liberties, an unamendable basic feature of our Constitution. John Finnis, professor of law and legal philosophy at Oxford University, describes the rule of law as “the name commonly given to the state of affairs in which a legal system is legally in good shape”. Our legal system is, plainly speaking, in an appalling shape.

The Jessica Lall verdict was, for us lawyers, an unsurprising product of a dysfunctional criminal justice system. The constitutional guarantees of life and liberties include the right to a “fair trial”. A delayed trial is not a fair trial — neither to the victims and their relatives waiting endlessly for justice, nor to the accused who languish in overcrowded jails.

A system in which there are over three million cases pending in high courts and over 20 million in trial courts can be fairly described as having collapsed. Successive governments have done virtually nothing to address the causes: lack of judge strength and lack of infrastructure. The political system no longer appears to be on the same side — of late there is visible antipathy towards the rule of law and courts — except where it can be used to embarrass political rivals.

This attitude is prompted, at least in some measure, by increasing criminalisation of politics, and by the perception that the courts are a let and a hindrance in achieving populist measures (for instance, reservations) or using populist tactics (like strikes and bandhs).

Populist causes, in a fractured polity, tend to have a face-off with the law. Mamata Banerjee’s cause is a case in point. Populist methods seriously threaten the foundations of the rule of law. Didi did not assist the aggrieved farmers (if they are truly aggrieved) to resort to legal remedies to vindicate their grievances. The courts have not only the power but the duty to deal with violation of the rights of the downtrodden — of course they are not a vehicle to achieve a political agenda.

A hunger strike until death is demanding a result at the threat of a criminal act (that is, suicide), which is blackmail. If political blackmail gains legitimacy, it will be a sure step towards anarchy. It is blasphemous to compare these threats to Gandhiji’s satyagraha which was directed against a foreign monarch who ruled India. Besides, nobody could question the ‘satya’ of the ‘satyagraha’!

The courts are duty-bound to enforce the law even if it has unpopular consequences. If the Supreme Court has to enforce the town planning law on a street by street basis, it is not excessive activism but a testimony to an abysmal failure of those whose primary duty it is to enforce the law.

The argument that the courts are neither meant nor equipped to run the country, though true, is a mere attempt to obfuscate the real issues. The real issue is the gradual decline in the credibility of the other institutions of governance. Egregious corruption has eroded public confidence in the other institutions — the elected representatives, the civil service and the police. The judiciary — and in particular the Supreme Court — is seen as the only surviving hope.

The recent criticism of the Supreme Court is not so much out of concern for institutional comity and separation of powers, but of concern over judicial review of ‘sensitive’ matters.

The Congress government of Narasimha Rao found no ‘activism’ in the Supreme Court overseeing the shilanayas in December 1991. A little known fact is that the then attorney told the court that the armed forces were ready, awaiting the court’s directions. If the army was to fire upon the kar sevaks, it would be expedient if their deployment was ordered by the Supreme Court. Two judgments that have caused especial alarm tell their own story. These are the ‘sealing case’ — a direction to adhere to the town planning laws in Delhi (notwithstanding its unpopular consequences, not to mention its consequences on properties of those in office, as exposed in The Indian Express) — and the judgment holding that no sanction from the government is required to prosecute a minister on the grounds that he has received a bribe, since receiving bribes is no part of their official duties.

No critic has been able to point out as to how the court went beyond the established parameters of judicial review. The objection clearly is to the court directing the government to place the law above populism or political interest.

The attempts of the Supreme Court to ensure that the forest advisory committee includes established environmentalists prompted an additional solicitor general to suggest that the court does not respect other institutions. He is partly right. Corruption and abuse of power have become institutional, and that is one institution the court, mercifully, does not respect.

India’s survival as a democracy has been in itself a great achievement. Unfortunately somewhere along the way the institutions have lost their savour. We have faced and overcome many challenges. The challenge to restore rule of law to its rightful place is much simpler. The remedy is threefold.

First, re-establish the credibility of the civil services and the police by ensuring that they run the country in accordance with the law and policies (not diktats) made by the elected representatives. Secondly, all populist methods incompatible with the rule of law must be eschewed. Let’s follow Gandhiji’s ‘means justify the ends’ philosophy. Populist methods or agendas must be within the framework of the law, and populist laws must be within the framework of the Constitution. Third, we need an allocation of sufficient resources to the justice delivery system.

The media did yeomen service in the Jessica Lall case. This momentum must not be lost. The media can create sufficient public awareness that will ultimately force the pace of these reforms.