Indian Judiciary Is Still Failing To Act As The Custodian Of Democracy

An unprecedented event in January, 2018, saw four Supreme Court judges hold a Press conference – the first and last, in their view – to announce that democracy in India is in peril because “things are not in order” in the judiciary.

Four years later, Chief Justice N.V. Ramana, has also voiced his discontent over the state of affairs in the country where “hasty, indiscriminate” arrests are being made and laws are being passed without “detailed deliberation and scrutiny”.

The reason, according to him, is the prevailing “hostility” in politics where the space for the opposition is “shrinking”. As the chief justice has said, “these are not signs of a healthy democracy”.

Are the fears expressed by the four judges earlier coming true? Whenever misgivings are voiced abroad over the democratic conditions in India, the government routinely rubbishes them for being “biased”. Obviously, such a dismissive attitude cannot be taken with regard to the chief justice’s observations.

For the first time, therefore, since the Narendra Modi government assumed office, it is under pressure. Up until now, it has had its way on the incarceration of dissidents or peremptory steps such as the abrogation of Article 370 since the judiciary has not always intervened.

No judge had earlier described the repeated FIRs against a journalist as part of a “vicious cycle”, as Justice Ramana has now done. The result of the ease with which the police and the investigative agencies could persist with such “cycles” was that the ordinary person was virtually at the mercy of the authorities as in a banana republic.

There is a reason why the government can easily bulldoze its opponents into submission. It is the weakness of the opposition parties at the central level even if some of them are securely placed in their local strongholds. Hence, the arrogant use of bulldozers by the government to demolish the houses and shops of critics in areas where the central authorities are politically strong.

India has seen a strong central government earlier, too, notably when the Congress was in power in the decades immediately after independence. But, even then, notwithstanding the occasional misuse of the police, few were scared to speak their minds. Parliament was a forum where the opposition gained nearly as much prominence as the prime minister and the ministers.

Between 1947 and 1975, India saw itself as a model democracy. The international community also recognized it as such – “famously democratic”, as The Economist said. The election of the world’s first communist government through the ballot box in Kerala in 1957 confirmed this reputation at a time when other newly-independent countries in Asia and Africa were going under the heels of dictators.

India’s first experience with autocracy was during the Emergency between 1975 and ’77, but the country recovered its prestige when the dictatorship was overthrown – again via the ballot box. Since then, elections have been regularly held, but the lengthening shadow of authoritarianism has made critics call it an “electoral autocracy”.

The authoritarianism is the result of an overbearing centre and an opposition in disarray. For the ordinary people, the only escape route back to the earlier days when the sense of freedom was more prevalent is via the judiciary and a revived opposition. Since the second prospect appears dim at the moment, the law courts remain the only hope.

Justice Ramana’s observations, therefore, carry a lot of weight. If his obiter dicta lead to a toning down of the highhandedness of the police and investigative agencies, it will bring about a sea-change in the atmosphere of the country by making people less afraid to speak out, as the late tycoon, Rahul Bajaj, had said even about the timidity of the rich and famous.

At present, “an overwhelming culture of fear” prevails in India, according to the British-Indian sculptor, Anish Kapoor. “This is the route to fascism”, he reportedly told an Indian magazine which has refused to publish his comments.

The faintheartedness of the magazine is in keeping with the lack of spine shown by the media in general, underlining the tendency to play safe which has earned them the sobriquet of “godi media” or lapdog media from critics.

It is the opposition’s and the media’s weakness which has allowed the government to ride roughshod over civil liberties and keep scores of activists in jail. The judiciary did not cover itself with glory during the Emergency. One hopes it will make amends this time. (IPA Service)

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