It started as a whisper years ago. A criticism passed along in hushed tones, which became louder with each passing year. Then came the open criticism on social media before it erupted as mass protests over the judgement on the SC/ST Act and then as mass defiance over the cracker ban on Diwali.
It is the discontent against judicial verdicts on issues relating to societal and public policy, which is widely seen as symbols of judicial overreach and undemocratic interventions.
Of late, the judiciary is treading a dangerous path. It is getting entangled in issues that need political and social solutions instead. Over the past decade, the judiciary has encroached upon the executive and legislative functions and has sought to direct the day-to-day lives of the citizens without having a mandate to do so.
From adjudicating on issues such as coal block allocations, running of the cricket board, religious issues, mundane tax issues and on how festivals ought to be celebrated, an unrestrained judiciary is dangerously exposing itself to the people and politics.
What is worse is that there is an impression that the judiciary is making laws on the basis of the PILs filed by foreign funded NGOs, special interest groups and a bunch of “supremacist activists” who think they know it all.
The PIL route today has become an instrument to bypass the legislature and democratic procedures but yet legislate for the citizens who have no say in the process. This is leading to a slow but massive build-up of unrest against the judiciary.
The National Judicial Appointments Commission Bill (NJAC) was passed by Parliament and ratified by the 16 state legislatures, and yet it was struck down by a Constitution Bench. This shocked the people and prepared the ground for discontent against the judiciary.
The first public symptoms of dissatisfaction were visible after the court’s intervention in Dahi-Handi and Jallikattu. The Jallikattu incident even threatened to open regional fault lines, something that the judges would, perhaps, have never imagined.
But that is exactly the point; such matters are best left to political decision-making. ‘Why ban Jallikattu on the ground of cruelty to animals but not slaughter on Bakr-Eid?’, people were openly asking.
Then came the decision of the Allahabad High Court that reservation roster for faculty recruitment in colleges and universities should be prepared department-wise instead of taking the total number of seats in an institution as a whole. It was upheld by the SC and as a result, SC/ST seats were virtually wiped out, while seats of the OBC and others were drastically reduced.
One wonders what is the need for the judiciary to intervene in such minute executive decisions. And when the Centre filed a Special Leave Petition, the Supreme Court kept on postponing the hearing for months, before dismissing it after a short hearing, not once but twice. That both the SC/ST Act and the roster issue coincided with the hounding of Justice Karnan in a judiciary not known for caste representation didn’t help either.
Unhappy Voices From Within
The recent letter by a Allahabad High Court judge summed up what a large number of people today think about the judiciary: it is a hub of nepotism and casteism. Few would dare to say it openly due to the fear of being charged with contempt of court. A right vested with the judiciary and often exercised in an arbitrary manner.
But silence doesn’t help either as the bitter truth is that the legitimacy of the judiciary, especially the higher courts, is eroding fast. It is no longer seen as just and fair by a large section of the population. Ultimately, it falls upon the government to overturn the judicial verdicts, and that it is now happening with increased frequency doesn’t augur well as it undermines the institution of the judiciary in the long-run.
Another blow to the judiciary came from the Sabarimala verdict and its own refusal to hear the plea on the entry of women in mosques and Islamic shrines. Now, whether it was right for the Supreme Court to put its weight behind ‘reforming’ just one temple of a deity where there is a partial ban on entry of women is a different matter but who exactly is the Supreme Court listening to?
When judgements quote from anti-Hindu iconoclasts known for defending sharia and the Islamist project in Kashmir, then the people can’t be faulted for being apprehensive when the court pronounces a verdict on a temple ritual. And by ruling that worshippers of a deity are not entitled to protection under the Constitution with respect to the essential religious practices, the Sabarimala verdict also relegated all the Dalit and tribal deities and beliefs to a second grade status.
The manner in which the judiciary has dealt with the sensitive Ram Janmabhoomi case has also damaged its reputation among the people. The case is in the court since 1949 and for over a century, if cases from the colonial period are taken into account.
Instead of giving the verdict in a civil suit on the ownership of the property, the Supreme Court even now is dragging its feet. It is trying to exceed its mandate by imposing ‘mediators’ on the Hindus and Muslims alike. It seems that it has not occurred to the Supreme Court that the very legitimacy of these people to speak on behalf of their respective communities is under question and any solution, if any, they come up with, will most likely be rejected by the people.
Delhi pollution is at a hazardous level with or without Diwali, and firecrackers don’t even figure in the measurable cause of pollution. Everyone is aware that bursting crackers when baseline pollution is high doesn’t help, and people were anyways slowly giving up firecrackers in the Delhi-NCR region. But judicial intervention in what should have been an executive function backfired as it touched a raw nerve among the people who have had enough of targeting of each and every Hindu festival.
What the judiciary missed was the simple fact that there is a socio-political context to everything. Delhi has celebrated Diwali even under likes of Aurangzeb when public celebration of Diwali would have invited punishment by death. Clearly, banning of firecrackers would never have worked. And that police started arrested and harassing people for their kids bursting stray crackers before Diwali led to the spontaneous mass contempt of the court on the night itself.
It is not possible for the Judiciary to continue to exercise direct power over people without also partaking in the accountability. The more it is getting entangled into the day-to-day issues best left to the executive and legislature, the more it is exposing itself to the political and social forces it just can’t withstand. And alarm bells must be sounded now.
Needed: Serious Policy Rethink
What India needs is a serious rethink on the role of the judiciary and the arbitrary powers vested in the judges. An example of the latter was recently seen when a police constable in Agra was asked to strip down in court. That the judge in question was merely transferred has sent a wave of disgust and resentment against the judiciary.
Perhaps, the immediate way forward is to convert the Supreme Court into a purely constitutional court, ensuring transparency and democratic accountability in judicial appointments and ensuring social representation in the higher judiciary.
Abhinav Prakash Singh is an Assistant Professor at the University of Delhi.
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