The judiciary is sacrosanct only to the extent it can play its allotted role in the Constitution

So the debate continues. The immediate provocation is the transfer of the chief justices of Patna and Madras High Courts. But in a sense, the debate has never stopped since the heady days of the first split in the Congress in 1969. It has merely ebbed and flowed with the political currents.The political context is important in understanding the contours and substance of the debate. Learned legal arguments alone do not explain its nature or why the Government and much of the judiciary are ranged on opposing sides.It is, in essence, more a political than a legal debate. The question concerns not merely this instance of the transfer of two chief justices, but the primacy of fundamental rights over directive principles and the virtues of the presidential and parliamentary systems.Judiciary-bashing is an exercise that goes well with the populism introduced into Indian politics by Mrs Gandhi in 1969 and still being practised by her and her followers in varying degrees.On the surface, Mrs Gandhi's supporters have a set of attractive agruments - one, Parliament is supreme; two, the judiciary cannot be allowed to stop the people's march to progress; three, the people's representatives know best. The general trend of these arguments is that the judiciary is a regressive force preventing the country from attaining the socialist haven.Any discussion on the judiciary's place in the Indian scheme of things is interspersed with these political arguments, either explicitly in the form of declamatory speeches or in the atomosphere in which the question is posed. And we have lived through the Emergency which saw how far the Government could go in amending the Constitution, attenuating liberties and showing its displeasure to the judiciary.Populist Game: It thus comes about that any attempt by the executive ostensibly to start a debate on the presidential system or to suggest amendments to the Constitution or to enforce the transfer of judges touches a raw nerve.The Government's arguments are not taken at face value because Mrs Gandhi has shown that she is no respecter of norms and conventions when it comes to sacrificing them at the altar of political expediency.The substance of the arguments on the transfer of the two chief justices, apparently without their consent, of those presently manning the barricades is simple. It is an attempt by the executive to arm itself with powers to show displeasure to judges who have crossed its path. This is fraught with danger because it will make the judges' task more difficult.In the game of populism being played today, the judiciary is in the thick of the battle precisely because it is trying to retain, in however imperfect a fashion, its independent role in a democratic framework.The Maharashtra Chief Minister, A.R. Antulay, might argue - as he did recently in Blitz - that the judiciary has usurped a greater role than assigned it under the Constitution in India's parliamentary system to justify his enthusiasm for the presidential form, but he is merely making a rhetorical point.The judiciary is sacrosanct only to the extent it can play its allotted role in the Constitution, which is to protect the constitution against distortions, render justice to one and all and resist unjustified interference by the executive. But this basic fact tends to get lost in the fog created by political arguments, which are used as a stick to beat the judiciary with.Misleading Attitude: The judiciary's weakness is that unless there is real justice for the poor, as there is for the rich, it is conducting an exercise of the privileged, by the privileged, for the privileged.The judiciary is sacrosanct only to the extent it can play its allotted role in the Constitution.... But this basic fact tends to get lost in the fog created by political arguments, which are used as a stick to beat the judiciary with. The law enforcement agency's rough and ready methods, the utter disregard for basic human values in the prisons, the blatant injustice of how undertrials rot in jails, the interminable delays in bringing the guilty to book or restoring the innocent to liberty - this is the Indian version of Orwell's 1984 here and now.The judiciary is not responsible for all these ills, but its attitude does not convey the impression of a passionate devotion to reversing the wrongs. Often these evils are accepted as a fact of life, and the Government, of course, has too many other, political, problems to deal with, in the country and in the ruling party, to expend much energy on real reforms.If those who were eloquent over maintaining the freedom of the judiciary were to devote themselves also to bringing justice to the poor, they would be better placed in fighting their battle. For how can the poor, who often do not obtain justice unless an incident is headlined in the press and becomes a subject of debate, sympathise with the protagonists of a free judiciary? For them the debate is an esoteric exercise relating to another planet, which will not make an iota of difference to their plight. It is easy to paint the judiciary as an impediment to progress because in practice the poor are often denied justice.Even more than the arguments being bandied about on the transfer of the two chief justices, the continuing debate on the presidential system is revealing. The ebullient and volatile Antulay, loyal lieutenant of Mrs Gandhi that he is, has taken to heart her "suggestion" for a national debate on the subject.He has acknowledged his authorship of the paper on the presidential system which was circulated for a time during the Emergency, has taken to declaiming the virtues of the presidential form and has even set the end of the year as the deadline for the change to the new system.Political Battle: Understandably, Antulay uses political arguments to try to score points. In his view, the presidential form would lead to stability by avoiding situations such as during the Janata and Charan Singh regimes, give the leader the option of inducting experts in the Government, force the presidential candidate to eschew communalism and casteism because he would have to appeal to a national constituency and end the game of defections.Antulay is silent on why the stage-managed lawyers' convention in Delhi and Mrs Gandhi's patronage of it sent shock waves throughout the country. The whole point about the emotions aroused by the debate is not the virtue or otherwise of a system that works well in the United States, but the use it will be put to in India by Mrs Gandhi, in view of her known predilections and the country's experiences during the Emergency.Inevitably, the debate sponsored by Mrs Gandhi and the controversy over the Government's action in trasferring two chief justices have merged because they are two sides of the coin. Legal arguments notwithstanding, they are in essence a battle over contending political philosophies.Shorn of rhetoric and verbiage, Mrs Gandhi's philosophy is that the nation cannot be the prisoner of a constitution, and if it does not work satisfactorily, it should be replaced by another. She either does not answer or answers rhetorically the important question, why the present system has been found wanting, since she herself is as culpable as any politician, if not more so, of the failings of the Indian version of parliamentary democracy.Rhetoric: Another facet of this argument is that short of Changing the system, it is necessary to refine and modify it to suit the country's needs. Here Mrs Gandhi helps herself to a large dollop of socialist rhetoric: it is to achieve the goal of egalitarianism that directive principles must have primacy over fundamental rights.And the question of parliament's supremacy vis-a-vis challenges from the judiciary assumes importance because the latter is a check on the ruling party's overwhelming majority distorting the constitution.For the record, this argument must be conducted within the democratic frame work. But many of Mrs Gandhi's followers, if not she herself, have little patience with checks and balances and believe that ends justify the means.Between this belief and a propensity to dispense with the democratic framework in practice is but a short jump, one attempted by Mrs Gandhi during the Emergency and in increasing evidence in the Congress(I)-ruled states.Those who oppose the executive's interference with the judiciary take the stand that any threat to the independence of the judiciary, either through penal action or grant of special favours, is an attack on a cardinal principle of a democracy. Bending the judiciary to the executive will must inevitably erode the democratic framework.On the popular level, the backers of a free judiciary-are at a disadvantage because their opponents can paint them as conservatives who wish to protect vested interests. To the layman, the socialist argument, on the other hand, sounds attractive because it projects an Utopia after the cobwebs woven by the judiciary are cleared.The main purpose of Mrs Gandhi initiating the "national debate" on the presidential form is to try to worst her opponents and accustom the public to the concept of a new system.Provocative Conflict: Mrs Gandhi is seeking to win the political argument and is not engaging her adversaries in legal debate, except on her own terms. She had earlier shown the intellectuals how irrelevant they were to her objective of winning majority support. She is now trying to demonstrate that in the debate on the judiciary, she hopes to win on grounds other than the merit of her arguments.Apart from the gloss of the socialist arguments, Mrs Gandhi knows that the poor are totally indifferent to the judiciary's battles because the rule of law seldom impinges on their lives. It is but one step for them to be convinced that the judiciary, the conservative force it is alleged to be, is a hindrance to the attainment of social justice.Mrs Gandhi's dramatic return to power in January last year is proof that merely to sing the praises of democracy is no answer to the challenge thrown at the judiciary. To win their argument, the proponents of a free judiciary must relate them to the people's needs and aspirations - why both bread and liberty are important because the latter is a check on an arbitrary government's rapacious tendencies.India must be the most litigious nation in the world; witness the dominance of lawyers in the Congress party's leadership ranks before 1947 and in the first decades of Independence. For Mrs Gandhi, conflict with the judiciary has provided both a testing time and an opportunity to chart new paths.The adverse Allahabad High Court judgment in June 1975 played a crucial part in the declaration of internal Emergency. And now the executive's right to transfer high court judges and the virtues of the presidential system are being avidly debated as a prelude to the shape of things to come.The legality of the two chief justices' transfer has still to be decided by the Supreme Court. Out of such seemingly esoteric issues will be fashioned the future of the country. The judiciary again seems destined to provide the provocation for political change.Published By: AtMigration Published On: Nov 25, 2013 14:00 IST--- ENDS ---

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The judiciary is sacrosanct only to the extent it can play its allotted role in the Constitution

So the debate continues. The immediate provocation is the transfer of the chief justices of Patna and Madras High Courts. But in a sense, the debate has never stopped since the heady days of the first split in the Congress in 1969. It has merely ebbed and flowed with the political currents.

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