These images— apparently disparate, have a common black thread—that of a beleaguered rule of law gasping to survive in the dust and din of Indian‘populocracy’.
India has faced and bettered many challenges. The immediate challenge to restore a beleaguered rule of law—gasping to survive in the dust and din of Indian 'populocracy'— to its rightful place is much simpler.
The rule of law is the bedrock of all liberties—an unamendable basic feature of our constitution.John Finnis (Professor of law and legal philosophy at the Oxford University) describes the rule of law as "…the name commonly given to the state of affairs in which a legal system is legally in good shape". Our legal system is, plainly speaking, in appalling shape. The Jessica Lall verdict was, for us lawyers,therefore an unsurprising product of a dysfunctional criminal justice system.
The constitutional guarantees of life and liberties include the right to a "fair trial". A delayed trial is not a fair trial—neither to the victims and their relatives waiting endlessly for justice, nor to the accused who languish in overcrowded jails.
Populist causes, in a fractured polity, tend to have a face off with the law. Populist methods seriously threaten the foundations of the rule law.Mamata Banerjee’s cause is a case in point. Didi did not assist the aggrieved farmers (if they are truly aggrieved) to resort to legal remedies to vindicate their grievances. The Courts have not only the power but the duty to deal with violation of the rights of the downtrodden—but they are not a vehicle to achieve a political agenda.
A hunger strike until death is demanding a result at the threat of a criminal act (i.e.suicide)—which is blackmail. If political blackmail gains legitimacy, it will be a sure step towards anarchy. It is blasphemous to compare these to Gandhiji’s satyagraha which was directed against a foreign monarch who ruled India. Besides, nobody could question the "satya" ofthe "satyagraha"!
The list of judgments that have caused alarm speak their own story—two of the mostcriticised sum it up. These are the "sealing case"—a direction to adhere to the town planning laws in Delhi (notwithstanding its unpopular consequences—not to mention its consequences on properties of those in office, as exposed invarious newspapers, particularly the Indian Express), and the latest judgment holding that no sanction from the government is required to prosecute a minister on the grounds that he has received a bribe—since receiving bribes are no part of their official duties .
No critic has been able to point out as to how the Court went beyond the established parameters of judicial review—the objection clearly is to the court directing thegovernment. to place the law above populism or political interest. The attempts of the Supreme Court to ensure that the Forest Advisory Committee includes established environmentalists prompted an Additional Solicitor General to suggest that the Court does not respect other institutions. He is partly right— corruption and abuse of power have become institutional—that one institution, the court,mercifully, does not respect.
The media did yeomen service in the Jessica Lall case—this momentum must not be lost. The media can create sufficient public awareness that would ultimately force the pace of these reforms.
All this sounds unreal in the day light— but dreams at dawn are what the new year is all about. Besides, some day we must wake up and ask as to what would we have gained if we can rival the U.S. or the Chinese economy butlose democracy itself?
We can only forget at our peril the warning by the great jurist John Locke who said, "Wherever law ends, tyranny begins"
Senior lawyer Harish Salve is a former solicitor-general of India. Ashorter version of this article first appeared in the Indian Express