Redefining judiciary role in Indian renaissance - II

The judiciary is now riding the high wave; some may say ‘riding a tiger’. But high hopes, when they are unmet, could backfire. Even political parties, if aggrieved by a particular decision, can incite people to take to the streets and openly defy the court. Then again, the judiciary also has chinks in its own armor. The integrity of Supreme Court judges is openly being called into question by their own fraternity, and the Court itself is being accused of ‘bench-fixing’ and ‘playing to the gallery’. The most damaging of all is the horrendous pendency of cases across all courts. It is estimated that the 5 crore pending criminal and civil cases would take 300 years to clear. Behind each case is a family in suffering. The cases pending in the Supreme Court is at a record high of 82,887, and nearly 62,000 of cases pending in high courts are over 30 years old. It is partly because too much time is used up in attending to ‘breaking news’ kind of cases — and VIP cases like grant of bail.

Celebrity lawyers literally run from a high court to the Supreme Court on the same day, and get their celebrity clients appeals taken up like grant of bail. For VIPs, being out on bail is virtual acquittal. Their cases go into oblivion with the public shifting their attention to another scam. And when in prison, they manage to have the amenities they have outside. On the other side, undertrials languish in jail for years or even decades due to their inability to afford the bail. At the district level — 90% of the judiciary — the situation is honestly harrowing. That is where the common man comes into contact with the judicial system. Cases often drag on for generations, enriching greedy lawyers and tormenting touts and corrupt court clerks. Although little noticed, judicial injustice in India is no less injurious than economic or social injustice. Many judges are indulging in what the Supreme Court itself once characterized as “an exhibition of judicial valor”.

Seventy years after Independence, and after seventy-four years as a constitutional republic, it is time to take a look at the role played by the judiciary holistically. That it has been expansive and eclectic, dominant and defining is obvious.

Upfront, there can be little doubt that the Supreme Court in particular has made immense contributions, through its landmark judgments, in ensuring the unity and integrity of India, particularly in the turbulent initial phase of post-Independence. But for this, India might have gone the way of many other newly independent countries and imploded. At the same time, there is also little doubt that our top courts have, through the exercise of their wide-ranging discretionary mandate, strayed far beyond their customary domain and waded into those of the other two wings of the government, the legislature and the executive. Some welcome this, while others see a threat to Indian representative democracy. Both have percussive points; as so often, it depends on the prism through which we peer.

What we should do is to look ahead and enable the judiciary to do what is required to contribute to Indian renaissance. On the one hand, it must conform to normal democratic norms both in its original jurisdiction and discretionary ambit and, on the other hand, channel its extraordinary elective powers to do ‘extraordinary’ things; such as those which are otherwise impossible to do but needs to be done, if only to save and steer Indian democracy in the right direction.

So, what could possibly be the most pressing constitutional need in India? It is nothing less than a comprehensive review of the Constitution, which has been amended over 100 times and never given an unconstrained relook. What we are refusing to recognize, in the name of our reverence to our founding fathers, is that they did what they could, but it was a rush job: Nehru called it ‘a basis for further work’; Patel gave it ten years; Ambedkar said ‘It was a hack. What I was asked to do, I did’. Even more pertinent, its cracks, inconsistencies and contradictions are surfacing by way of ugly Centre-State and intra-State disputes, river-water disputes. The irony is that everyone cites the same rule book for legitimacy — the Constitution. And it is true that as a hybrid Constitution, it tried to accommodate all contingencies. There is a growing risk that, if these frictions are allowed to gather steam, extreme regionalism can become secessionist. Not only that, the Constitution’s basic philosophy was faulty. India is so plural, diverse and differentiated that it cannot be governed either as a unitary or a federal polity; only bottom-up, grassroots governance will do. The obstacle now is the Supreme Court, which, through its doctrine of Basic Structure, ruled that the Parliament is not competent to do that. It didn’t say it can’t be done, say by the Supreme Court itself. And it has the constitutional authority under Article 142, which bestows upon the Supreme Court the power to pass any decree or order in relation to any cause or matter before it, which it deems necessary in order to do ‘complete justice’, and any decree so passed, or order so made, shall be enforceable throughout the territory of India. What could possibly be a better or more ‘complete justice’ than what the country needs most — a fresh First Indian Constitution. The Supreme Court should step in, invoke Article 142, and set in motion a process to enable we, the people, to give ourselves a Constitution we need and we deserve, and one that is suited to our genius. It is often said that a Constitution is a ‘living document’; if it does not change according to emerging challenges, it will be a ‘dead’ document.

The Supreme Court has so far used Article 142 several times on relatively less important issues, like the most recent cases of the release of Rajiv Gandhi assassination case convict, and in the Chandigarh Mayoral election, and reinstating an English lecturer ‘for doing substantial justice’.

The ball is in our court. The Supreme Court wouldn’t budge without powerful popular pressure. And in a country like India, it is near impossible to mobilize the entire nation. That is not even necessary; according to the doctrine of ‘critical mass’ we need to bring on board 3.5% of the population, which is 5 crore Indians. That number is beyond reach with a population of 140 crores. At least, that many “we, the people” Indians cannot sit on the fence or pass the buck; they must stand up, ready to be counted upon.

(Writer is a retired ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­IAS officer)