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When judges behave more like priests, delivering sermons from high podium...

By Ajit Singh* 

The theory of separation of power found its origins in ancient Greece but with the passage of time it became widespread in other parts of Europe. Early proponent of the theory Greek philosopher Aristotle in “Politics” argued that implementation of constitution in letter and spirit can only be possible if the three elements among whom the power has been distributed are well arranged.
It was the French political thinker Charles Baron De Montesquieu who later produced a refined version of the said doctrine in his book "The Spirit of Laws" and established the modern foundation of "trias politica" or "separation of powers".
After its Independence in 1947, India inherited the Westminster form of government from the British, so unlike Presidential governments where functions are distinctly assigned between three branches, in our country there is an overlap of executive and legislative powers because members of the former are invariably part of the latter, in other words those who controls well of the lower house holds the legitimate right to govern at centre.
Montesquieu in his book asserted that close connection between the legislature and executive possesses a dangerous threat to liberty in the Parliamentary system and that's why the importance of independent and robust judiciary exceeds further due to higher chances of autocratic purge in this kind of democracy.
The traditional role of judiciary to guard people's fundamental rights, to act as legal arbitrator and to check the constitutionality of laws passed by lower-upper houses becomes more crucial under a majoritarian government.
Courts that are regarded as the central pillar in a republic have deliberately failed to deliver its job in India. The last resort who carries the burden to uphold freedom & liberty in a democracy is seemingly crumbling under its own weight. Here are the reasons why...

Rise of illiberal courts

In August 2020, senior Advocate Prashant Bhushan was found guilty of contempt of court by the Supreme Court merely on the basis of his tweets through which he questioned the complacency of the last four Chief Justices of India (CJIs) in the destruction of democracy in India. 
More recently comedian Kunal Kamra and cartoonist Rachita Taneja faced similar charges after they mocked apex court for granting bail to journalist Arnab Goswami in record time in abetment of suicide case while tens of thousands of undertrials are awaiting for their bail applications to be heard.
Indeed, the growing culture of intolerance among judges further reaffirms the claim that India's hard earned tag as the "world's largest illiberal democracy" wouldn't be possible without judiciary's fair contribution.
The courts in India are not just setting a bad precedent by initiating contempt charges for slightest of criticism but at the same time wasting the limited resources to satiate its victimhood mentality that could have been directed towards redressing the plight of real victims of State excesses.

Judiciary jumping on executive's bandwagon?

Recent judgments delivered by the apex court have raised serious doubts on its credentials whether the independence of judiciary in India is real or merely apparent.
In 2018, the Central government notified the electoral bonds scheme, where an individual or an organisation could purchase these bonds at specified branches of State Bank of India and the donor can donate them to a party of their choice.
Ostensibly, this was done to check the cash donations that people made to political parties. However, the controversy lies in the fact that provisions of the law introduced have made donors anonymous and even outside the ambit of the Right to Information (RTI).
The SC has been hearing the petitions challenging the constitutional validity of electoral bonds for more than three years. Activists and opposition parties demanded to at least put a stay on the sale of these bonds before the general elections of 2019 and ahead of the assembly polls in four States in 2021, but the court dismissed all pleas, and by virtue of its inaction has helped one party to secure lion share of 95 percent and 75 percent by sale of these bonds before the commencement of the respective elections.
Supreme Court's inability to act on time in cases of constitutional significance that includes abrogation of Article 370, Citizenship Amendment Act-National Register of Citizens (CAA-NRC), amendments to Unlawful Activities Prevention Act (UAPA) RTI Act, demonetization and its green signal to Central Vista project or Rafael deal is the reason why citizen's confidence in Judiciary has crashed to the lowest level and this is happening at a time when people's court in India continues to resemble like a one party court.

Normalisation of jail over bail

Last year comedian Munawar Faruqui had to spend a month behind bars for the jokes that he didn't even crack. His bail petition was repeatedly denied thrice by sessions court and the High Court of Madhya Pradesh. Finally the Supreme Court had offered some respite by granting him interim bail in February.
The term "bail is rule and jail is exception" is not just a cliche doctrine of criminal jurisprudence but its stature is no less than the fundamental rights that gives precedence to individual liberty and personal freedom before anything else. Unfortunately the courts in India have become more conservative and hesitant to follow this important judicial principle.
Even the privileged ones who have the wherewithal to bear the legal cost became the victim of the rotten bail system. But not everyone has that kind of influence & capital to sustain this long legal battle & that's why many journalists, activists and thinkers are locked up under flimsiest of evidence, hopelessly waiting for the "day of judgement" that may not arrive till their death.

Non-reformist judiciary

The people appreciated the Supreme Court's decision to take suo moto cognizance of the infamous Lakhimpur Kheri violence in UP that involved the merciless killing of agitating farmers and a journalist who were run over by the son of Cabinet Minister's car.
But soon this appreciation for the court turned into scepticism when the three judge bench headed by CJI himself accepted the status report submitted by the UP government and further the statement of eyewitnesses in sealed cover.
On the October 20 hearing of the case, the judges categorically said that the court had never asked for the report to be filed in a sealed cover but nevertheless they not only accepted it but also refused to share the report filed by the State government with the petitioner and public.
The court's fascination for sealed cover is not new; in the past, in many notable cases that concerns the fundamental rights of citizens like Bhima Koregaon-Elgar Parishad case, in Romila Thapar vs Union of India, implementation of the controversial NRC and so on, the judges have overexploited this procedure which was developed to be used only in the matter of national security & to hide the identity of victims of physical abuse.
Contrary to what's happening here, in other parts of the world the judiciary in many countries are introducing major reforms to increase public trust and judicial accountability. For instance, the Supreme Court of Ireland has come up with an innovative practice of introducing a one page formal summary accompanying the detailed judgement that would be written in easy language and free of legal complexities to provide equal access to justice for everyone.
It's high time for our courts as well to do away with the culture of secrecy and inculcate inclusive judicial practices from all corners of the world.

Judges as virtue signallers

Lately we've witnessed that our judges are behaving more like priests, delivering sermons from their high podium. For instance, in one of the event CJI commented about the threat to human rights in police stations.
Recently the senior most judge of the Supreme Court Justice DY Chandrachud added to this trend, when he talked about rising public intolerance in the country by referring to Dabur's Karwa Chauth advertisement, which has been taken down under pressure and threat from hindu right wing groups and Madhya Pradesh State Cabinet Minister for showing lesbian celebrating the festival instead of usual heterosexual couples.
These kind of pious lectures by Supreme Court judges leads to a deeper question: When individual freedom of choice is being strangled in India and the popular majority has been given a free pass to intrude in personal space of the citizens, at such a precarious juncture, is it right for the judges to act like a mere virtue signallers? 
After all, they are aware of the fact that the Judicial branch of the Indian State is the only strong bulwark left & our last hope to defend the Country from the "tyranny of democratic majority".
American columnist George F Will in his article titled "The Constitutional Right to be Left Alone" has also highlighted the duty of courts to break the status quo & err on the side of activism when needed. In the Washington Post article the author argues against the republican virtue of restraint that judges usually adhere to.
As he explains:
"Granted, where politics operates -- where collective decisions are made for the polity -- ajorities should generally have their way. But a vast portion of life should be exempt from control by majorities. And when the political branches do not respect a capacious zone of private sovereignty, courts should police the zone's borders. Otherwise, individuals' self-governance of themselves is sacrificed to self-government understood merely as a prerogative of majorities".
---
*Hobbyist writer graduated in economics, currently sophomore in B Ed programme

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