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Faith in the Supreme Court may be misplaced

Judicial activism could hobble Indian democracy

  • John Dayal, New Delhi
  • India
  • July 16, 2013
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Fed up with massive corruption in the political and bureaucratic system and gross social inequity, the people of India have over the last 10 years or so put all their faith in the country’s judicial system, especially the Supreme Court.

So deep runs the faith in the Supreme Court that hapless plaintiffs approach it for just about everything – from issues of identity to definitions of religion, the right to food, life and livelihood.

The court is seen as the sole scourge of social ills and targeted crimes, including gang rapes, custodial deaths and profiling by a deeply bigoted police apparatus.

But with so many eggs in just one basket, it is inevitable a few will crack, and that a few will elicit a rotten judgment. And with a total judicial backlog of about 30 million cases, many will have to wait an eternity before justice is done.

It becomes positively touch and go when decisions can impact tens of millions of people in core issues of identity and rights. The additional risk is the implied threat that unbridled judicial activism can do to democratic institutions and processes, and how they can exacerbate people’s growing distrust.

Two recent controversial judgments by the Allahabad High Court and the Supreme Court have shaken the political and social edifice.

The Allahabad High court judgment seems to appeal to “people like us” and the apolitical and non-ideological middle class by outlawing “caste-based” public demonstrations, meetings and rallies, so common during election time but not unusual on other occasions including birthdays of patron saints and political leaders.

The middle class sees it as a blow to identity politics.

But this is a body blow to marginalized and victimized people who for millennia have been disenfranchised and silenced by the social system, and now seek cohesion and articulation in such public meetings. Among those adversely impacted would be Christians, particularly Dalit Christians, for whom a public demonstration seems the only way to focus attention on persecution after meeting with failure in approaching the police or the courts.

The government and the courts do not suggest any alternate forums for such voices to be heard by those who exercise power, evolve policies and dispense both resources and justice. At the end of the day, the judgments kill democratic freedoms. 

Another Supreme Court judgment apparently strikes at democratic processes in the guise of cleaning up the electoral system of criminals. The Supreme Court affirms that people who do not have the right to vote – and those whose right to cast a vote is suspended because they are in jail – cannot also seek election.

Then it goes several steps forward and says that everybody who is in jail, whether as a suspect in a crime or any other violation of the law or after a conviction by a court, will be barred from election to parliament or state legislatures and local self-governance institutions. There is no surprise among the middle class once again welcoming this as a historic judgment that will clean up the system.

 The reality in India is very different.  Not every lawbreaker and criminal is in jail. It is equally true that not everyone who is in jail is a criminal. Thousands of Muslim youths – those who have not been liquidated in extra-judicial killings called “fake encounters” – are in jail on mere suspicion of being terrorists. Most of them are eventually released, but by then they have spent the best years of their life behind bars.

Also in jail are students protesting social ills, trade union leaders, and political and social activists, especially those working with tribals and Dalits.  There are also fears that Indian political parties who are in government at federal or state level would put their political opponents in jail on trumped up charges to get them out of the election process. The courts have not said anything on how these abuses of the law will be prevented.

For the small Christian community in India, the courts have dealt a very mixed clutch of judgments in the decades since independence. Every time the community has gone to the Supreme Court seeking protection of its constitutional rights to run educational and other institutions threatened by governments, the courts have found occasion to circumscribe them to an extent.

The courts have also upheld the so-called Freedom of Religion Acts of various state governments which interfere with the people’s rights to a faith of their choice.

 A poignant example is the Dalit Christians’ request for statutory benefits as “scheduled castes” to compensate them for their historic marginalization in the caste system. The courts many years ago said such benefits to Hindu Dalits (later to Buddhist and Sikh Dalits, too), could not be given to Muslims and Christian converts from the same former untouchable castes. 

Ironically, Dalit Christians and Muslims are in court again seeking help in regaining those rights.  Almost eight years on, there is no progress in the court. If anything, the so far false hope from the legal appeal has apparently impeded a more vigorous assertion of their rights by the Dalit Christians through democratic mass movements.

John Dayal is the general secretary of the All India Christian Council and a member of the Indian government’s National Integration Council.

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