Sunil Khilnani, an intrepid admirer of Nehru’s inclusive vision of India in his iconic book ‘Idea of India’ (1997) has observed, “The constitutional democracy has prevented monolithic outcome in India. It has stalled zealots in the tracks, penned demagogues to their corrals and taken wind out of popular sails. Democracy’s singular and astonishing achievement has been to keep India united as a political space. And that space has become a vast marketplace whose strength lies in its internal diversity and dynamism.”
However, such a sanguine view of India’s democracy is not shared by Gopal Krishna Gandhi, a venerable liberal voice. In a recent edit in a newspaper, he writes: The Hindu-Muslim divide is growing into new and menacing proportions, which is belittling our constitution, debasing its greatness and destroying its heritage of a shared people hood. Tagore wrote: When the heart is hard and parched up, come upon me with a shower of mercy.
In these dystopia times when communalism is on the rise, Tagore’s plaint for mercy could not have been timelier. The Supreme Court is perceived as the last lamppost of hope, justice and empathy for the ordinary Indians who wear no religion on their sleeves nor do gender, colour, caste or ethnicity matter to them as they grapple with malnutrition, poor education, basic healthcare, poor employment opportunity and an apathetic nation state, which is not accountable.
At the inauguration of Supreme court, MotilalSetalvad, our first Attorney General, had expressed the fond hope: Like all human institutions, the Supreme Court will earn reverence through truth.’ However commenting on the role of judiciary during the emergency years, Granville Austin, the famous jurist, had observed: The judicial system has failed adequately to serve the social revolution strands of the web. The failure of the system to dispense speedy justice is because of the dilatory and self-indulgent process, of which both judges and lawyers are guilty. However if one takes a long term view of Supreme Court judgments, the track record is rather mixed. In the ADM Jabalpur case in 1975, the majority of the judges agreed that right to live and liberty stand suspended during emergency. The lone dissenting voice was of Justice HR Khanna, who said: Detention without trial is an anathema to all those love personal liberty. Expanding further, he said: Neither life nor liberty is bounties conferred by the state, nor did the Constitution create these rights. He risked suppression but upheld rule of law and majesty of life and liberty from the highhanded intrusion by a brutal state against hapless citizens.
In an interesting edit in a newspaper titled “The Missing I in India”, RaghuramRajan argues that the present tendency of group identity, viz Hindu Vs Muslim, Dalit Vs Brahmin, Bengali Vs Malayalee trumping over natural rights of individuals would need to be reversed. That will make us Indian citizens first, who happen to be Hindus and Muslims or OBC Vs General Category. These are utopian ideas as reservation based on caste and low income has become deeply entrenched. No political party will like to upset the applecart. As the Supreme Court stopped the bulldozers from pulverising the houses of poor Muslims in LakhimpurKheri, the Supreme Court’s role in upholding the secular character of India has come into sharp focus. The stand of the court has been controversial in a few cases.
In the SarlaMudgal Vs UOI (1995) case, the court felt that ‘since 80% have been brought under codified personal law, there is no justification whatsoever to keep in abeyance introduction of Uniform Civil Code.’ Such a directive by the court runs contrary to the right to freedom of religion guaranteed under Articles 25 & 26.
Most discerning observers believe that there is a need to reform certain personal laws, be it of the Muslims or the Hindus so that they are in sync with the sacrosanct provisions of the Constitution. A case in point is maintenance payable to indigent Muslims where the Muslim Personal Law runs contrary to Art 15, which prohibits discrimination on the ground of religion. In the Shah Bano Case (1985), CJI YV Chandrachud rightly gave primacy to CrPC over the Muslim Personal Law so that all similarly-placed are treated at par in the matter of receiving maintenance. It is rather unfortunate that Rajiv Gandhi, pandering to the conservative Muslim clergy, brought in a new law overruling Justice Chandrachud’s decision.
In another case, Manohar Joshi Vs NB Patil (1995), the appellants had brought out how hate speeches by BJP followers by calling the opponents traitors and establishing a Hindu state were indulging in corrupt practice under Section 123 of the Representation of People’s Act. Surprisingly, Justice JS Varma condoned it by observing: A mere statement that the first Hindu state will be established is by itself is not an appeal for vote on the ground of religion, but the expression is at best a hope. The hate speeches with explicit intent to divide people on communal ground have taken firm roots since then. India today is witness to sharp polarisation in terms of religions to which we belong, the food that we eat and the dress that we wear.
In these deeply-disturbing times, one hopes that the Supreme Court does not give confusing signals in preventing flagrant communal violations. More importantly, it must not be seen to be dilatory on sensitive issues. FaliNariman, the noted jurist, writes in his autobiography ‘Before Memory Fades’: Impartial administration of law is like oxygen in the air. It is not enough for the judiciary to be independent of the executive. They must be seen to have noble quality of heart and mind and, above all, courage.” He could not have been more prescient and prophetic.
(The writer teaches Constitutional Law in a reputed Law School)