A Plea with a Broken Wing

Separation of powers is a hallmark of all genuine democracies. In the same way, it is a priority for dictatorial or fascist governments to emasculate courts and bring them under the influence of the executive authority. Likewise, a desperate struggle to preserve the essence of democracy often shows up in courts’ resistance to unlawful expansion of executive power. It would seem that right now we are watching the throes of such a struggle in our own country, though with waning hope.

The Chief Justice of India, who demitted office on 16 November, had left a batch of cases of utmost gravity and consequence to be considered during the week before he retires. The nation was aware of their critical importance for the state and the Constitution. It waited with bated breath for the outcome. The results in all these cases have disappointed all but diehard supporters of the government.

The honourable judges missed their chance to stave off an imminent threat to the Constitution. It has failed to call to order a rampaging executive that has thousands of cheerleaders out on the streets.

These cases, mostly arising out of Public Interest Litigations (PILs) filed by people anxious about the burgeoning crisis of democracy, seem to have been decided in a manner heedless of the grave perils ahead. The Ayodhya verdict has gone into meticulous detail, but apparently with a view to avoiding a certain compelling conclusion rather than ensuring logic cast in iron. Sabarimala seems to have granted greater weight to argument from faith than to implications of the Constitution.

Above all, the Rafale case has been dismissed in a summary fashion, brushing aside some really challenging reasons for the desired review of the 2018 verdict. The most disturbing feature of the judgment is its peremptory tone, which practically amounts to severe strictures against the petitioners, Yashwant Sinha, Arun Shourie and Prashant Bhushan. They have been charged with turning themselves into an “appellate authority” to determine each aspect of the contract and “call upon the court to do the same”. To my eyes, the petition appears no more than an expression of distress at a strong whiff of corruption involving huge wastage of public—tax payers’—money.

It is common knowledge that the biggest scams everywhere take place in the defence sector, and the plea of national security should not be allowed to draw a veil upon them. The petitioners are therefore discharging a public duty worthy of honour. Instead, they have been brusquely pulled up.

The affidavit submitted by the government in 2018 not only contains most arrant falsehoods but also distortions of facts that might be construed as attempts to mislead the highest court. This itself should call for some serious rebuke. There was none. Further, the tone of the judgment is such as to discourage any searching question on the government’s conduct or misconduct.

It behoves people in positions of highest authority, who wield enormous power, to maintain the dignity of such positions with dignified sober language and patience. In order that justice is not only done but also seen to be done, a judgment ought to be worded so that it removes all doubts and misgivings.

The three petitioners had only desired an enquiry by the Central Bureau of Investigation (CBI), which had been stalled only because of the overnight intervention by the government, in view of certain indisputable circumstances. They did not directly accuse the government of corruption.

Further, the Supreme Court’s decisions in the Ayodhya dispute and the petition seeking a review of its Sabarimala ruling to a larger bench have privileged faith above the Constitution. In both cases, in different ways, solid constitutional principles are being overshadowed by those of faith.

It is no secret that some quarters would be happy to replace the present Constitution. In this situation, one hopes and prays that the highest court treads warily—but firmly.

The author writes on socio-political issues and is a literary critic. The views are personal.