The judiciary is responsible for many of the problems that we face today 

Prominent lawyer Harish Salve late last year blamed the Supreme Court of India for the economic slowdown in the country. The apex court, he said, had not been consistent in deciding commercial cases and by cancelling licenses for coal blocks and 2G spectrum with a single stroke of the pen, it had undermined confidence in the ‘system’, had led to power plants and telecom companies to fail big time and prompted foreign investors to stay away from the country.

Salve, who has an international practice and who is perceived to be close to the Modi Government, did not say this in so many words but what he was asserting was that the Supreme Court had erred big time by getting swayed by popular sentiment and not by the letter of the law.

While both the 2G verdict and the order on coal blocks are of 2013-14 vintage, in recent years many other omissions and commissions by the Supreme Court have raised eyebrows. Its refusal to order investigation into the suicide note left behind by former Arunachal Chief Minister Kalikho Pul or the Sahara-Birla papers and later the Rafael deal, was inconsistent, if not surprising. They were inconsistent because the court ordered investigation into several less serious matters at the same time.

Its stony reaction to the abrogation of Article 370, incarceration of Kashmiri political leaders without any charge or trial, its refusal to hear expeditiously the Habeas Corpus petitions, its delay and half-hearted stand on the Internet shutdown in the Valley are just some of the other instances when the highest court of the land appeared to have let the people down. Its controversial judgment on Ayodhya may have secured a political closure of the festering issue, but it did not deliver justice by a long chalk.

While both the 2G verdict and the order on coal blocks are of 2013-14 vintage, in recent years many other omissions and commissions by the Supreme Court have raised eyebrows. Its refusal to order investigation into the suicide note left behind by former Arunachal Chief Minister Kalikho Pul or the Sahara-Birla papers and later the Rafael deal, was inconsistent, if not surprising. They were inconsistent because the court ordered investigation into several less serious matters at the same time.

Its stony reaction to the abrogation of Article 370, incarceration of Kashmiri political leaders without any charge or trial, its refusal to hear expeditiously the Habeas Corpus petitions, its delay and half-hearted stand on the Internet shutdown in the Valley are just some of the other instances when the highest court of the land appeared to have let the people down. Its controversial judgment on Ayodhya may have secured a political closure of the festering issue, but it did not deliver justice by a long chalk.

Judges love to give lectures and in recent years we have had far too many of them. But the effect of such lectures has been short lived because the speakers often do not appear to mean what they say. While the apex court frowns on protests by people and ‘violence’, it appears to accept and legitimise violence by the state. While courts mocks ‘RTI activists’ and wonder if they belong to a professional class and if they are an impediment to the government, the courts have displayed no worry or urgency at the government diluting the RTI Act or flouting its provisions.

While the Indian judiciary swears by transparency, it has had no problem in encouraging and promoting the culture of sealed envelopes, allowing the government to share ‘sensitive information’ by way of evidence only with the court and not with the petitioners or defendants. It also allowed the government to argue that former Union Minister P. Chidambaram, held without a charge sheet and naturally without trial or evidence, be denied bail because he happened to be ‘very intelligent’.

What is even worse, the judiciary has failed to administer itself. While frowning on motivated Public Interest Petitions as ‘Private Interest Petitions’, the judiciary has allowed obscure lawyers to file what can only be described as ‘Political Interest Petitions’. It is difficult to believe that the judges in their innocence have been oblivious to the intent.

Similarly, in the past few years, groups of lawyers, who are officers of the court, have frequently taken law into their hands but were always allowed to get away without the ‘full vigour of the law’ bearing down upon them. When a group of lawyers in the national capital assaulted Kanhaiya Kumar of JNUSU in court in 2016, nothing happened to them. Had civilians, litigants or undertrials been guilty of similar misdemeanour, they would have cooled their heels in jail. In 2019 another group of lawyers assaulted Delhi policemen, forcing policemen to go on a lightening strike and demonstrate at Delhi Police headquarters. Once again nothing happened to the lawyers.

More recently, in January, 2020, the Bar Association of Mysore decided against representing Nalini Balakumar, a young woman who was booked by the police for holding a placard that read, “Free Kashmir” during a protest. Lawyers in Mysore were cowed into submission and told that it would not be appropriate to defend her. There was no outrage and no reaction from either the Bar Council of India or the judiciary at the highest level, no attempt at reminding lawyers of their professional ethics and responsibility.

Speaking at a meeting in JNU in January, 2020, Nandini Sundar, Professor of Sociology at Delhi School of Economics, said something striking. She was happy to be a part of an India, she said, where nobody ever got justice but people never lost the hope for justice.

She knows a thing or two about the Indian state and the judiciary. Author of a book on Maoist insurgency in Bastar, she irritated the local police enough for them to implicate her in a murder case. Fortunately for her, she was in Delhi and tipped off early, she could approach the Supreme Court for relief. An ordinary citizen with no connections would have been arrested and put in jail.

In February, 2019, after a change in government, the police withdrew the case. The complainant, widow of the man killed, had never named Sundar or anyone else, the police informed the court. Nor did anyone else in the village. No evidence had been found of her involvement. Therefore, the case was being withdrawn.

Hundreds of Adivasis in both Chhattisgarh and Jharkhand have not been as lucky. They have been languishing in jails for years. They were put behind bars during the last decade and a half for allegedly being Maoists or Maoist sympathisers, for waging war against the state. Mere acquaintance with militants, who grew up with them in the same villages, a chance meeting with them or the militants demanding food and shelter in the villages, were grounds found good enough for their arrest, torture and prolonged incarceration.

Sudha Bhardwaj, a lawyer who voluntarily took up cases of many of these poor villagers, has also been in jail for over a year under the infamous UAPA, which does not allow for bail. She is not alone. Several other prominent activists, lawyers and college teachers, have been charged in the same Bhima-Koregaon case, for ostensibly conspiring against the state and plotting political assassinations. They remain in prison without trial.

A large number of so-called terrorists, all Muslims, have been arrested over the years without a shred of evidence against them. The courts have finally acquitted them after the innocent men spent the best years of their life in jail. Such acquittals are now drawing international attention and are doing nothing to burnish the reputation of the Indian judicial system.

If there is hope, it is being kept alive by a bunch of young lawyers. When a message went around social media that Nalini Balakumar needed legal help in Mysore, as many as 170 lawyers responded and offered to take up her case. Young lawyers in Assam, Lucknow and Delhi are writing blogs, raising questions, critiquing judgments and offering legal help to the needy. They need to be supported by many more senior lawyers and civil society.

At his best man is the noblest animal. But divorced from law and justice, he is the worst, asserted Aristotle. The rule of law is the ultimate test of a civilised nation.

The Indian Constitution gave us an independent judiciary, a judiciary with more power than the Parliament. On the 70th anniversary of the Republic, let us hope it redeems itself.

(Views expressed are the author’s own)