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CJI is right. Elections don’t guarantee democracy. But judiciary’s delays & overreach are also issues

Chief Justice NV Ramana, speaking to a virtual audience in the 17th Justice PD Desai Memorial Trust lecture, underscored what real democracy should mean anywhere in the world. It is not merely about elections and the people’s ability to change governments; it goes beyond enforcing the law to ensuring that any law is legislated through a participative process and is easy to comprehend; it’s not just about a judiciary that is independent of the executive but also from undue influences, including a raucous social media that often is unable to distinguish between right and wrong.

Among other things, Ramana said, “the mere right to change the ruler once every few years, by itself, need not be a guarantee against tyranny ….” The post-electoral foibles of the elected can be fought only if other organisations of the state, including the judiciary, do their bit. He said: “The masses have performed their duties reasonably well,” and it was “the turn of those who are manning the key organs of the state to ponder if they are living up to the Constitutional mandate.”

As a master-class in the basics of democracy, this magisterial speech will stand out, even though previous judicial eminences have often said similar things. In July 2018, Justice Ranjan Gogoi, who was later to become Chief Justice of India, had this to say in his Ramnath Goenka Lecture: robust democracy needs “not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges.” The last was probably a reference to the unprecedented press conference held by four sitting Supreme Court judges, including Gogoi, where they alleged that all was not well with the highest court.

The problem lies not in the essence of what CJI Ramana said, but in two different areas. One is the tendency of the media and political parties to over-read what is being said. It would not be unreasonable to read this as a message to the Modi government that it is not beyond judicial scrutiny just because it won two huge mandates in 2014 and 2019. But it can equally mean that Mamata Banerjee, who won an even bigger mandate in West Bengal this year, should pay heed.

So, yes, the judiciary has a role to play in preventing executive excesses but the thing that should concern us is not what judges say, but what they do. When two judges recuse themselves from hearing cases involving post-poll violence in West Bengal, one wonders if this is not an abdication of duty in a case where life and liberty are directly at stake.

In today’s age of political and economic disruption (2008, the eurozone crisis, and now the pandemic), scared voters everywhere have been looking for reassurance that things will be fine. Often, they tend to vote for politicians who are able to tap into their insecurities and promise easy solutions. From Donald Trump in the US to Viktor Orbán in Hungary, Vladimir Putin in Russia, Boris Johnson in Britain and even Narendra Modi in India, voters have opted either for “strong” leaders, or leaders offering simple solutions (Joe Biden, for example) in a complex world. This has happened locally too, where voters have given clear mandates to Banerjee in West Bengal, MK Stalin in Tamil Nadu and Pinarayi Vijayan in Kerala, among others. Split mandates have been rare in recent years.

In this scenario, elected political leaders can easily come to believe that voters have given them a carte blanche to do what they think is right, and the deliberative process is short-circuited, as was probably the case with the farm reform laws. They were sorely needed, but farmers did not get to participate in it and now are out in the streets claiming it’s bad for them. In a democracy, people’s participation cannot be limited to one day at the polling booth. It has to involve regular engagement – which is what the CJI was hinting at.

However, this kind of daily democracy is hard to practice in a diverse society where opposition exists often just for opposition’s sake. Building a consensus can mean deadly delays which can cost the country dear. And the judiciary is often a complicating factor when it gets into issues that go far beyond upholding the constitution. We lost a decade in coming out of the negativity delivered by sweeping judicial verdicts in the 2G and coal block allocation scams, and today every deal, every project, from Rafale to the Central Vista, is being made to jump through legal hoops using public interest litigation (PIL) that may sometimes be driven by vested interests.

On the other hand, the judiciary has been slow in delivering judgments in cases with a larger social and political impact. Why did it take the SC nine years after the Allahabad HC judgment in the Ram Janmabhoomi case to deliver a final verdict? Why is it fighting shy of speeding up important constitutional cases, including the CAA, the nullification of Article 370, Sabarimala, et al?

Equally questionable is the judiciary’s tendency to overreach in matters that should be in the executive’s domain. Some years back, the apex court, while dealing with hearings related to pollution in Delhi, actually directed the levy of a tax on SUVs entering the capital. Taxation is definitely not the judiciary’s domain. More recently, it has decided to sit in judgment on the vaccine pricing policy, the method of allotment of oxygen cylinders etc. It is one thing to mark yourself out as the champion of people’s rights and then inadvertently proceed to damage the other institutions that are equally important to a well-functioning democracy. Independence is not something reserved exclusively for the judiciary.

None of this takes anything away from the sentiments and ideas expressed by CJI Ramana. They stand as sound principles on which to build a robust and vibrant democracy. But as Roman nobleman Cassius tells Brutus in Shakespeare’s Julius Caesar, “The fault, dear Brutus, is not in our stars, but in ourselves, that we are underlings.”

CJI Ramana and his successors will have ample chances to prove that they mean what they say.



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Disclaimer

Views expressed above are the author’s own.



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