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‘Distancings’ taking us away from making of aspirational, new, smart India-II

By Mansee Bal Bhargava* 
Few days ago, I wrote about ‘Distancings’ taking us away from making of aspirational, new, smart India. It was about the implicit presence of array of distances between the long standing social distancings and the pandemic’s requirement of physical distancing prevailing in the country, which became more explicit rather exposed in the last few years and more so in the Covid-Lockdown period.
Those distances are the Political, Economic, Judicial, and Intellectual, besides the prolonged Environmental/Ecological distancing. In the previous article (Part-I), the Political and Economic distancings were covered, and in this second part, I shall elaborate upon the Judicial distancing that has widened in the recent times. In the last, third part soon, I shall talk about close to my heart subject that sums up the others: the Intellectual distancing.
This article is an open letter to the Honourable Supreme Court for enlighten itself after its dark year of misjudgment of crucial situations and injustices pronounced in disguise.
I start with my concern as also mentioned in the part I that, “If this is the way Making of New (Smart) India is going to take place, I shall Refrain from being part of it, I shall Resist it to humanly possible means, I shall Restrict it to happen, I shall Reform it to my best of abilities to better my country”.
I waited to this day to write the Part II when the supreme judicial system of the country will rise to the plights of the millions of migrant workers on the roads on their way home due to the poor Covid-lockdown governance. It took Supreme Court (SC) two months and four lockdowns to take the suo-motu cognizance of migrant workers issues after sustained denial of its intervention.
The SC sloppily shunned away from its responsibility to the High Court besides sitting and thinking that the government (unclear which? centre? state? local?) knows best about the welfare of the people. Since this is a national level humanitarian crisis where the country is equally hit by the Covid and the poor governance of it, the SC is expected to step up its defined role as the co-partner of governing India’s democratic and constitutional framework. This is a stun reminder on the role of the courts that it is not merely to adjudicate disputes between parties, but also to protect the rights and liberty of individuals.
Now, when the SC directed the centre and states to immediately provide transport, food and shelter free of cost to stranded migrant workers, it is, Too Little Too Late! There are still several of the migrant workers who are stranded between their residencies in the city and the village, several died on the way, several children orphaned, and we don’t know how many were physically abused. If we are to seek justice for each of those distressed people, the already fractured judiciary may collapse.
Anyway, for the Supreme Court now it is like, Better Late Than Never! Then, when the three-Judge Bench pointed the inadequacies and lapses on the part of the central and state governments in dealing with the migrant workers crisis during the lockdown; the question then is, why are they reluctant to push for adequate and immediate compensation by the government to the distressed and needy and even go a bit further to punish the government? Why is the SC delaying this decision?
The judiciary should have intervened effectively and meaningfully immediately and proactively in lockdown to ensure that things are done in an ‘organized, guided and just’ manner. If the Prime Minister takes a decision on the lockdown of the whole country within four hours without discussing with other parliamentarians and especially with the Chief Ministers, it was the duty of the judiciary to intervene to take cognizance of the preparedness of the governments for the same and extend the imposition of lockdown in the lawful manner for some time after adequate preparations and even giving people the time to be prepared.
Why is the judiciary not proactive and merely and barely reactive and acts only after collective voice of the Bar?
We are in a democracy, where there is a constitution above all including the governments. So, if a Prime Minister dreams and dares to announce demonetization and then lockdown without enough consultation and planning with other parliamentarians; and if anyone can check this monarchic approach of a democratically elected representative, it is the judiciary.
Justice is a country’s foundational goals and the judiciary must perform its duty properly for its people to continue its pursuit of peace, prosperity, and progress, where properly also refers to ON TIME besides, no innocent to be punished despite all guiltiest freed. From the national address of March 24, 8.00 pm called for a total lockdown across the nation amid coronavirus fears, the first petition (by lawyer Alakh Alok Srivastava) in public interest pertaining to the millions of migrants was registered by the SC on March 31.
The SC decided to hear only emergency cases during the Covid-lockdown that needs urgent resolves. Ok fine! Get it! Then, it is disturbing when the SC wakes up midnight for ‘a’ journalist (ok fine, do that) whereas it was in sleep mode for the cries of millions and the deaths of hundreds and could take the suo-moto for them after two months (of doing what?).
What is also disturbing is SC will get time to hear ‘a’ man’s trivial plea to even change the name of the country from ‘India’ to ‘Bharat’, whereas it is still not ready to seek accountability from the government on the use of the PMCARES funds which too was initiated overnight despite an existing and functional National Disaster Response Fund, constituted under Section 46 of the Disaster Management Act, 2005 that supplements the State Disaster Response Fund.
When will the judiciary ask as how the PMCARES is not a Public Authority when the billion worth public money has gone into it under csr or forced salary cut? It feels that the judiciary is locked down for some years now and justice is in ‘emergency care'.
So, why does the judicial system look so tamed and/or timid at this moment? Why is the judiciary not proactive and merely and barely reactive and acts only after collective voice of the Bar? Why is justice so delayed in this case and otherwise? The present justice situation in the country is unimaginable as, ‘Justice Delayed is Justice Denied’.
The reason cannot be only because of short of human resources to act faster as several literatures tell, rather it looks more now that it is short of human values despite the matter of the fact that the judiciary too is made up of the humans, run by the humans for the humans. The women standing in the courtroom is blinded for doing ‘Nyay’ (Justice) and not for the Judges/Lawyers to be doing ‘Anyay’ (Injustice) to the people of the country.
There is an implicit understanding among the privileged as well as the poor that the country’s judiciary is not going just and judicious for long time and more so recently as we hear it more due to the media. The connected and canny are the might and the unconnected and underrepresented are at the mercy of the delayed judgements.
This implicitly existing judicial distance has been reinforced from time to time by the judiciary, so in that sense, there should not be any surprise of the SC’s lethargy and lethal delay this time also in the case of the millions of migrant workers given its record of judicial distancings especially in the recent times.
From a distance the answer, to why the court is acting indifferent to some major issues in the country, is not so difficult since the judicial distancing existed for long time but has reached the epitome of distrust in the recent times with the occurrence of several delayed and denied interventions. Things came out more openly when four well known senior most judges of the SC shared to We the People about the crisis in the SC (in 2018) saying, “all not okay, democracy at stake”. 
If judges aren’t protected, then how can We the People be protect, more so if We is the Women that too a vocal one
Although the judges came out for their fellow judge and the SC functioning, but not for the people at large, yet it tells a lot about what is going on inside the court rooms. Ironically, one of the judges among those dissented later gives judgement on the much delayed (70 years) case of a 2.77 acres property dispute tagged to the emotional quotient of Lord Ram and Ram Mandir. Though the judgement was most obvious but was out in the most suspicious manner (in a sealed envelope) before the judge’s retirement.
This directs the situation of the judges who are handling special cases, since they too are humans and are subject to vulnerability (of any kind accusations). For example, when the Gujarat High Court judges bashed the government for poor Covid governance, the bench is changed abruptly meaning a judge of the bench is transferred. Not to forget that Justice Loya is transferred for ever from his life and Indira Jaisingh and Anand Grover side-lined.
So, if judges aren’t protected, then how can We the People be protect, more so if We is the Women that too a vocal one. We remember that Gauri Lankesh lost her life and the justice is still awaited, while we are aware that the country is among leading in the world for journalists deaths and delayed justices in the last few years. And if people representing the fourth pillar of democracy are unsafe and unheard, there is no doubt that We the People shall remain unsafe and unheard.
Then the people who stand for We the People, too are threatened left, right and centre. For example, when the SC was ordering to free undertrial people from Tihar Jail to thin the place for Covid-social distancing, it was on Ambedkar Jayanti, that his grandson-in-law and scholar-activist Prof Anand Teltumbde along with civil rights activist Gautam Navlakha were arrested by the National Investigation Agency (SC rejected the bail plea and asked to surrender in three weeks’ time on March 17 and later extended the arrest by a week only on April 9 when we were already reeling under Covid).
At the same time and with the same logic of releasing undertrials in the Covid time, the court is unwilling to release lawyer-activist Sudha Bharadwaj and academician Prof. Shoma Sen. Even the public intellectuals like the 80-year-old poet Varavara Rao are unheard by the SC. Will the judiciary provide valid answers for such cases as well as those released under Covid pretension?
When such things happen to the voiced people of the society, then the common citizens have all the reasons to be concerned and even scared of the Judiciary which is infact true that many of us want to avoid courts in our lives. But in case of the extreme vulnerable situation, like the gendered cases too, the courts have failed to rise to its role. For example, it took over seven years for the Nirbhaya case to be resolved and a few times postponement of hanging of the convicts.
India is also among the leading countries in the world on rape issues, then how come courts take 7-20 years for judgement and cannot expedite the rape and molestation cases particularly of the named politicians holding the high offices as well as the local leaders atleast to set a precedent? Does judiciary hint its politicization even in such crucial matters? Does judiciary hint patriarchy? I guess yes to a large extent.
And when the judiciary does provide just and justice on time, then the government is tempted to take over its powers and roles to the extent that even a branch of the Home Ministry, the police in Hyderabad in the gangrape case found it easier to shoot the suspects under encounter than to go through the judicial process to ease and please the citizens. 
This kind of justice is unfortunate, and judiciary cannot allow and promote it. Ironically, the people are so very in distrust of the injustice of judiciary that they are seeking quick justice of this sort. So when, the distressed citizens react saying that, "My daughter's soul is at peace now. Justice has been done. I never thought we would get justice. No other girl should experience what my daughter did"; the judiciary must know that it had failed in holding its position and doing its duties. 
It is scary when many people endorse encounter killing by taking to Twitter and Facebook to say police had delivered justice
More scary is when many people are endorsing the encounter killing by taking to Twitter and Facebook to applaud the police, saying they had "delivered justice", it is a sign of a sick society and judiciary has the sole responsibility of pushing society to that barbaric mindset. 
Repercussions of such endorsements of quick justice by the society takes a different form when gets upscaled as was heavily witnessed in the police brutality, i. in Jammu and Kashmir post abrogation of the article 370 and otherwise for decades; and ii. in the nationwide peace protests on Citizenship Amendment Act-National Population Register-National Register of Citizens (CAA-NPR-NRC) especially with the students of Jamia Millia Islamia and Jawaharlal Nehru University (JNU).
The recent form of extreme police brutality was witnessed in several parts of the country during the lockdowns as some policemen looked out of control on smashing the distressed poor people to push them in/out of lockdown. Justice delayed is unfortunate, but justice quickened in this form is injustice and unacceptable. When will the Courts rise and take actions against injustices and reinstate their role to provide just justice?
Then, the final nail in the coffin of the humanity was the year 2019, when most people of the country lost their hope on the judiciary as the second pillar of democracy. On the one hand, despite several petitions on the EVMs' malfunction and malpractice, the SC did not utter a word. 
On the other hand, the SC allowed the electoral bonds with nominal checks amid the condition of shortage of time overlooking the anonymity provided to the donor and the source of money besides the recipient political party raised which many had raised concerns regarding the transparency in political funding.
Though both these issues remain crucial to the political and economic landscape of the country and what is happening to the humanitarian front, I shall keep it aside for a new article as the focus here is on the humanitarian aspects of the judiciary’s justice.
Following the election 2019, the two landmark governmental disasters that the government now claiming as their achievements of 2019 wasn’t questioned and stopped by the courts, the 370 and the CAA. Before the Ayodhya judgement, in August the judiciary failed to stand up for the Jammu and Kashmir People for the way they were put under the lockdown without prior notice and negotiations with the local leaders under a functioning state government that was systematically brought down before the abrogation of the article 370.
Article 370 is one part, but the lockdown with the extended curfew is still not questioned by the judiciary. When thousands of army march past the streets of the Valley, it cannot be called a free state in a democracy as was propagated by the government. The brutalities to the citizens especially the thousands of young boys jailed and beaten up are unacceptable. 
On top of this, the harvest from the valley, the tourism economy and the education were put on complete halt. To add to the hardships of the local people, the SC popped up with a judgement that internet shutdown is not breach of fundamental rights and shall hear the 370 related cases when there is peace in the valley.
Several youths are affected with their education, communal hatred in the rest of the country besides staying away from family for long time. What is disturbing is that, on the one hand, the peace attained according to the government by pushing people into jails and under house arrests (including so many political leaders) is not seen unconstitutional by the courts and on the other hand, when the SC says when there will be peace what kind of peace the court is referring to.
And if there is really peace, why would people need to reach the door of the courts for seeking justice. Ironically, even after nine months, the SC is still not finding it an important matter to hear and do justice and continues to decline to refer the 370 case to seven-judge bench for initiating the hearings. 
When thousands of army march past the streets of the Valley, it cannot be called a free state in democracy as propagated by government
Similarly, after the Ayodhya judgement, the limits of the humanity crossed in J&K spilled to the country’s capital with the protests against the proposed amendment of the CAA-NRC bill that was later converted to an Act and the protest spanning pan India by December. 
Again, the judiciary remained in the wait and watch mode instead of being the watchdog of the Constitution. When all over the country, people from all walks of life joined the peace protests led by the women, the police brutality and the SC’s blindness continued.
Worst is that the SC has demoralized the right to peaceful protest which is really directing its patronizing by the government. The right to dissent as a constitutional right of the people in free country is not supported by the SC though some High Courts same forward in support of that. 
Things went too far with police entering campus and beating students and at the same time the same police standing and watching a youth shot fire to the protesters. While the government refused to listen to the protesters, the SC endorsing the government shuts its eyes saying that it will hear the plea of the protesters after the protests are stopped. This is incomprehensible on the part of the judiciary and justice.
So, as the SC didn’t find the lockdown in JnK and the CAA-NRC unconstitutional, it conveniently slipped into the Covid’s lockdown until recently. The letter is an attempt to connect the dots on the lost role and responsibility of the judiciary which is distancing it from the people. The examples discussed are extraordinary and if the ordinary examples are included, it will require more pages than the pages in the Constitution document of India.
We are going through difficult times since the beginning of the year with the advent of the Covid-19 and the extent of lockdown miseries especially of the daily wage workers besides those who have other medical illnesses. We are also going through major structural disruptions in the country since the election 2019 and under the purview of a blinded judiciary. 
While these examples quoted as achievements of the year by the government towards being a global leader despite the economic despair, they are difficult to be accepted morally and constitutionally, mainly on the judiciary’s part. It is still unconceivable that the judiciary did not rise to the injustices that took place over the last few years and therefore, it is understandable that it could not rise for the millions of innocent migrant workers due to the poor governance.
With the end of Lockdown-4 and beginning of the UNlockdown-1 for some regions, it is no embarrassment that the Covid-lockdown governance has failed We the People and the failure attributed by the courts also failing to act on time on the situation as well as on the governments.
When some parts of the country may still remain under lockdown including the Model Gujarat of Super Model Ahmedabad, then there is a realization that the social-physical distancing didn’t really help much to contain the Covid, as the Covid death toll of India continues to rise. Besides, the increasing issues of the poor peoples’ starvation, livelihood and indignity is further brutalised systematically administratively, communally and by the judiciary.
It is so much more embarrassment that people are equally distressed and dying of the unplanned lockdown as they are from the Covid. All this because the two key institutions of the country, the government, and the judiciary, did not act collectively. 
Had the SC stepped in or stood up for a better governance of the Covid-Lockdown, we may have had a different situation in the country right now. It is a reminder again that the lack of proactive judicial intervention encourages poor governance. The demonetization is heavily suffered till date with the near collapse of the economy, so will be the migrant workers plea which will haunt many of us for the rest of our lives.
Ironically, the judiciary still seems to be in the silent-sleep mode on the unprecedented humanitarian crisis imposed from the bad governance. As the statements made by solicitor general Tushar Mehta before the SC on the suo-motu petition regarding the problems of migrant labourers shows the belligerence, disregard for facts and open hostility towards the concerned petitioners.
If such attitude is to continue, then the judiciary is more responsible for this distancing with We The People and the Constitution. If New-Smart India is without good governance and judiciary, it is time to read the book, ‘God Save the Hon'ble Supreme Court’ by Fali S Nariman, until I come back with an equally invigorating yet insane intellectual distancings we have reached in India. Jai Hind!
---
*Entrepreneur, researcher and educator, and a keen political observer. Click here for Part 1 and here for Part 2 of the article

Comments

I misseed this part of the judiciary's decision... why didn't judiciary go after the government?
https://theprint.in/india/governance/if-modi-govt-had-followed-this-2018-sc-order-migrants-wouldnt-have-had-to-flee-the-cities/432603/?fbclid=IwAR25xhsL1l7i2EuwJ9PfXEdtsH1EkiAqhKfc4SeEwXpUZziBZS1N035W3VE

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