Saturday, 19 September 2015

Mr. Rajinikanth, Well Said About the Judiciary – But There is More to Say

     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