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Posted at: Jan 14, 2018, 12:01 AM; last updated: Jan 14, 2018, 12:01 AM (IST)
Saba Naqvi
MOCKINGBIRD
Saba Naqvi

Something rotten in the Republic

Saba Naqvi
Democracy, they (the protesting judges) said, was under threat. That scared me and I tried to understand what they could have meant

Saba Naqvi

THERE are moments in the life of the Republic when we pause in shock and a measure of awe. The four justices of the Supreme Court who held that jaw-dropping press conference against the Chief Justice of India are men who have several years ago been vetted, faced intelligence inquiries, and then been sent to serve in the courts eventually landing in the highest court of our land. The court tasked with the noblest job of preserving the Indian Constitution. These four men cannot be lightly dismissed as “anti-national” the phrase now bandied about to tar anyone who opposes the agendas of those in power at the Centre. 

We now have it from the horses’ mouth that there is something rotten in the institution meant to safeguard our Republic. As a lay person who does not understand legal procedure, I read their letter four times to make sense of it. But I understood their words quite simply. Democracy, they said, was under threat. That scared me and I tried to understand what they could possibly have meant. 

Clearly our elections will go on so electoral democracy is not about to be concluded. What the judges were saying in essence is that our democracy survives because of independence of the judiciary, which is now being compromised. The administrative decisions of the Chief Justice of India that they have critiqued in careful words suggest that sensitive cases, in which the government has stakes, are being sent to carefully hand-picked judges. 

This is deadly serious stuff and suggests that the higher judiciary could become a puppet of the political masters, if sections of it have not become so already. Which is why the counter-attack on the judges who spoke out is being organised in the political arena. It has been suggested by sections of the media that the judges broke with tradition because of “a certain political agenda”. The untimely and inappropriate visit of a senior CPI leader to one of the four judges has been highlighted on camera as if to suggest it’s a communist conspiracy after all. That is if it’s not a Congress conspiracy since the party has issued a statement and President Rahul Gandhi uttered a few words on the matter!

Had such an event taken place when the Congress was in power and did indeed try to subvert the judiciary, most notably during the Emergency, would the principal opposition forces, been able to resist making statements? Let’s recall too that the current finance minister Arun Jaitley, spent time in jail during the Emergency and fine lawyer that he is, would have a profound understanding of the importance of an independent judiciary.  I am sure he comprehends what is going on at various levels in ways that cannot be shared with the public and perhaps even the two most powerful individuals in his party, one of whom has direct stakes in the constitution of a bench that would look into the sudden death of a judge who was presiding over the Sohrabbudin fake encounter case.  

That said, it’s important to move beyond the immediate political slug-fest. Let’s examine what could happen if all sections of the higher judiciary were in debt to those in power, either due to direct political patronage or due to the suppression of corruption charges held as leverage over senior judges.  A columnist is allowed to have a flight of fancy and let me state it here bluntly; we could for starters end up as a surveillance state and that too a rather inefficient one, as this paper’s fine reporting on the Adhaar matter recently suggested. Not only would the government,  bank and essential services we subscribe to have our details, others could also buy it for a price. As an individual who faces some nasty social media threats, I take the breach of my security and that of my family very seriously.

There are even greater concerns. I had once commissioned senior Supreme Court advocate Raju Ramachandran to write a piece on whether we could constitutionally become a Hindu Rashtra. I was given a brilliant treatise on why it could not happen but the central point he made is that it all rests on Supreme Court judgements that hold that the power of Parliament to amend the Constitution do not extend to altering its basic structure or framework. At this point in our history, any attempt to review our Constitution would be halted by what is now called the “basic structure doctrine”. But imagine if all the judges in the Courts danced to the tune of the political masters. Any judgement can be reviewed and things that appeared impossible in the past, could indeed happen in the future. 

That is why I doff my hat to the four fine men who may have ruffled feathers by breaking convention and tradition but that’s a small matter when we understand what is at stake here. They have done something unusual these days: for love of the country they have put their own reputations and futures at stake to speak from a place called conscience.

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