Speaking in public recently about the
Indian judiciary, actor Rajinikanth said, “The nation has its faith in
courts. It’ll be ruined if courts go the
wrong way”. Well said. What he meant is also clear. But there is something more to say.
Just look at what the judiciary does for
you in India, and in what ambience it functions. Also consider what the other
two wings of the state - the executive and the legislature - are expected to do
for the judiciary in a democracy and how far they go.
To begin with, imagine situations
like these:
· you buy an article, it malfunctions
and the manufacturer or servicing agent doesn’t honour the product warranty;
· your co-owner of some property claims
for himself your rightful share in a house, and squats on it;
·
your rival in trade, politics or show business
defames you;
· you report to the police a crime
committed on you, but they don’t register and investigate it;
· a property registering officer or a
taxman demands from you excessive stamp duty or tax;
· the legislature passes an
unauthorized law affecting you – like taking away some fundamental right
How
do you resolve these problems? You know the answer: you have to go to court if
the other person or the government insists on being unreasonable with you. By choice or by practical compulsions you may
not approach the court, but the best you can hope for anywhere in a persisting
dispute is a chance to plead your case before a dedicated third-party agency
like a court which has authority to direct parties to a binding solution. And you have it in India.
The
executive – or ‘the government’ – rubs shoulders with citizens every day and
every hour, and so you could get affected constantly that way. The legislature may cross your path only when
it enacts wrong laws, but lawmaking itself happens rarely by comparison. Your confrontation with Indian legislatures,
whenever it happens, is also theoretical, and you would then really be battling
the government that wears the mask of the legislature. This is why it is so. Every statute law is mostly initiated by the government
in the legislature, by introducing a bill.
The bill is passed automatically with the government-supporting majority
voting for it, thanks to the anti-defection provisions in our Constitution. Those provisions say that if a legislator votes
inside the legislature against the directive of his political party, or remains
absent at voting time, he vacates his seat in the legislature unless his political
party condones his defiance within 15 days – why
would anyone wish to be ejected from a legislature in that fashion when it is a
hard battle to get nominated and a harder one to win an election – when that
battle is quite expensive too? So any
bad or oppressive law passed by a legislature and affecting people is virtually
an act of the government.
Governments,
you know, are run by politicians at the helm, and so it is really them you have
to fight the most to keep your rights as a free citizen if they are denied. Most governments in India, meaning most of the
ruling political class in India, respect your key rights and interests against
them because they reckon that the judiciary will keep them in check if
challenged. The saddest part of that
fact is, only judges and politicians know that fact well – not the multitudes
of people who are so protected by the judiciary. Our democracy is yet to evolve to the level
where a government, on its own by a trait, will respect rights of people who
would also be informed and aware. As of
now our democracy is just God-blessed, not citizen-powered.
And
then the judiciary assists the government too if a private person – an
individual or a corporation – does a wrong to the government or to the public which
the government cannot or does not set right.
Like in collecting huge tax arrears, evicting squatters on public
property and even recovering colossal amounts of public revenues lost through
government’s misallocation of natural resources such as spectrum or coal mines.
Did
you notice this? The judiciary is not
placed to receive help from individuals, corporations or the government. The judiciary is only a giver, and scarcely a
receiver. It does a sort of a parenting
role in our democracy.
The
Indian judiciary’s performance has been one of the very best among all
democratic countries – especially if you note the counterweights put against
its independence and dignity from outside, some open and audacious and some
subtle but serious. Judicial
institutions in mature democracies would not be facing such grave onslaughts
from their executive branches. Worse
still, they do not suffer brazen disrespect and indignities at the hands of
lawyers themselves at many levels and in many places. And still the Indian judiciary carries on
doing its job admirably well.
You might have
a question, “Politicians are despised and ridiculed even more, but carry on
with their functions – so how are judges different or superior?” The answer is: Our politicians are faulted
for straying from the straight path, and they could have secret rewards. Judges in India mostly face opposition for boldly
coming down on law-breakers, deriving no special benefits for themselves. That is the difference.
True, there
are also some among the vast numbers of our judges who misbehave and the
judiciary needs some cleansing here and there.
But there is no doubt that, more than others, judges have preserved
freedom and democracy in free India till now.
There
is nothing wrong in saying publicly that judges should be independent and
credible. At the same time we must also say out that we
salute them for their work and, more than that, ask all in public life, and
lawyers, to give judges the respect and dignity they deserve – like we do for
army men. Probably, many feel reticent about
telling that openly so all politicians and others could hear, and yet could appeal
to judges to be on the right path and serve the nation. Our
democracy needs to grow to make us feel really free.
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Copyright © R. Veera Raghavan 2015
Copyright © R. Veera Raghavan 2015
