|
A Search for An Awakened Soul
Justice &
the Indian Middle Class
Gian Inder Singh
| |
India's Supreme Court has singularly failed to recognize,
concede or even engage with the fact that while politics is not
about law, certainly not all about law, law is all about
politics. It is okay to make great claims about objectivity and
neutrality of the law off and on, but everywhere in evolved
democracies, there is a clear recognition that politics does
determine how our law and the idea of justice functions. |
|
 One of the most
meaningless pharases uttered in
India at a
frequency that is almost stupefying is that "the law will take its
own course." It is only matched by the astonishing number of times
another meaningless sound byte is delivered: "I have immense respect
for the judiciary and the judicial system." Men who utter such words
include Narendra Modi after Gujarat massacre, L K Advani after Babri
demolition, Mulayam Singh and Amar Singh after CBI cases into their
shady deals, Lalu Prasad Yadav after fodder scandal, Jagdish Tytler
and Sajjan Kumar as they keep dodging the law in court after court
even 25 years after leading bloody mobs to kill, maim, burn Sikhs
alive in the national capital.
The higher the
court, the more pure their faith in the judicial system. So, the
Supreme Court becomes the repository of all objectivity, justice and
purest of motives. No wonder that men like Maninderjit Singh Bitta
also hail their faith in the judicial system when utter miscarriage
of justice is done in Prof Devinderpal Singh Bhullar case. One after
the other gross violations of human rights happen right under the
nose of
India's Supreme Court, but the pretensions of
India's
ruling elite and the brahamanical Indian establishment about the
faith in the judicial system remains ever so high.
 The
reason is simple. Any decision to recognize the warts is likely to
lead to a serious engagement with the issue, and any serious
engagement will bring out the hollowness of the sham that the Indian
establishment has collectively come to put on when it comes to the
ability and the inclination of the courts deliver justice.
When
India's middle
classes jump to their awakened conscience after 26/11 Mumbai terror
attacks, the judicial system too joins them. It suddenly awakens
from slumber to find that terrorism is indeed a bad thing, and the
mayhem involving the massacre of 180 innocent young men and women at
five star hotels and a railway station was unacceptable. "Enough is
enough," goes the war cry. The middle class-elite-English
speaking-TV friendly people initially wanted the most simple of
solutions: Attack Pakistan. Shorn of its frills, it said they have
killed our innocent rich, let's kill their innocent poor. And in
larger numbers.
|
All these
are well meaning, honest, beautiful people-like-us who want to
do good. Their politics is simple. It starts with 26/11, or the
debate on reservation, or the Jessica Lal case. Their mantra to
build a new India of equal opportunities is to end the quota
system. An odd fodder scam will not bother them much, they can
always make up by making fun of a Bihari politician in laughter
challenge programmes. They cannot see Hindutva politics.
Ideological fights are petty politics for them. They do not
believe in the politics of Left or Right; they claim to believe
in some higher form of politics in which the ideal is divorced
from politics |
|
Well meaning
columnists suggested exporting terror. "We should do to
Pakistan
what Pakistan has done to us," they said. Forgetting that we are
doing it to ourselves. Ajmal Kasab could not even buy new clothes,
and he dithered into the world of terrorism. Large sections of
India's population cannot even buy two square meals, and the apathy
of the Indian state translates into what is shamelessly hidden in
the umbrella term "naxalism".
But no, all of
this does not awaken
India's
judiciary. The Supreme Court and the not so supreme courts, all sit
tight as India goes on violating human rights. Unacceptable levels
of poverty, unacceptable levels of malnutrition, unacceptable level
of infant mortality rate, unacceptable numbers of farmers committing
suicide, unacceptable number of boots in the Kashmir valley,
unacceptable nature of atrocities in India's north east,
unacceptable role of India in many of our neighbourhoods does not
awaken the middle class or the Supreme Court.
But both respond
to similar concerns. 26/11 jolts the middle class; 26/11 awakens the
judiciary. See, whose interests have come to converge! The rulers,
the middle class and the judiciary's concerns are converging, and
converging fast. And one outcome of it all is a meaningless
reiteration of a non-fact that the judiciary is always above
politics, that the courts have nothing to do with politics and that
politics per se is a bad word and a bad construct.
 India's
Supreme Court, and of course the larger judicial system, has
singularly failed to recognize, concede or even engage with the fact
that while politics is not about law, certainly not all about law,
law is all about politics. It is okay to make great claims about
objectivity and neutrality of the law off and on, but everywhere in
evolved democracies, there is a clear recognition that politics does
determine how our law and the idea of justice functions.
Guantonamo
Bay
was not illegal, it was immoral. When it had to be shut down, it had
become illegal because a different politics informed our
understanding of such a monstrosity. At one time, the "war on
terror" phrase had become the catchphrase for patriotism, now those
who are bigger patriots and are recognised as such are banishing the
phrase. Obviously, this is recognition that there is always politics
attached to our actions. But Indian judicial system is
extraordinarily thick-skinned to underline this.
As the great
American judge Benjamin Cardozo had said: “The great tides and
currents which engulf the rest of men do not turn aside in their
course and pass the judges by. The sooner we recognize this as a
society, the better off we will be.”
But will
India's Supreme
Court ever muster up the courage to do so?
 This
is the Supreme Court that takes up cases of ban on polythene bag on
suo motu basis, that hauls up politicians for their failure to stop
someone from splashing paint on hill sides and calls it Rape of the
Rocks, but it cannot stop the demolition of Babri mosque, it cannot
take suo motu notice of the Sajjan Kumars and Tytlers, or of
Narendra Modis or of rapist and murderer self-styled godman like
Gurmeet Ram Rahim.
But off and on,
one or the other good soul engages with these issues and puts
India's judicial
system to shame. The system that
India's
politicians and the ruling brahamanical elite love to praise. Who
praises whom is always a good indicator of who serves whom. If the
politicians praise the judicial system all the time, surely it is
not serving the common man. It is this simple fact that the
scintillating new book "The Court and the Constitution of India:
Summits and Shallows" by O.Chinnappa Reddy (Oxford University Press)
has brought out.
Reddy is the
right man to intervene. He is an insider, a former judge of the
Supreme Court of India (1978 to 1987) and he was a judge of the High
Courts of Andhra Pradesh, and of the
Punjab and
Haryana prior to that. He is the youngest of the legendary quartet
of Supreme Court judges (along with Justices V.R. Krishna Iyer, P.N.
Bhagwati and D.A. Desai) who, some three decades ago, changed the
course of India’s judicial and political history by seeking to
radically transform the Court, in the words of Upendra Baxi in his
brilliant foreword to this book, “from the Supreme Court of India
into a Supreme Court for the Indian impoverished.”
 Reddy's
is a judgment on those who deliver judgments for a living.
India's
top court has been found wanting at crucial times and in crucial
cases. Its eagerness to send Arundhati Roy to jail is matched by the
near apathy about the killers who roam free. The judicial response
to the terrorism on the poor of India being wreaked by the
neo-liberal policies has been a poor statement of the politics of
law. The judges are sharing the ivory towers with the politicians
and claim neutrality because they do not go out for dinner with the
local councillor but they have failed to descend to the crowded mud
huts and littered pavements to see how their words about
participative justice and people’s participation in the judicial
process are hollow and meaningless.
Reddy has
narrated in detail a few samples, including the 1967 Supreme Court
verdict in the Golaknath case (denying Parliament the right to amend
fundamental rights) which he called “a tragedy” whose effect “was to
stop Constitutional progress and fossilize the Constitution.” The
Emergency-era decision of the Court in the ADM Jabalpur case—holding
that our life and liberty were gifts of the State that could be
taken back by it at its pleasure—is “dreadful and calamitous”, an
instance in which the Supreme Court of India “touched the lowest
point that could ever be touched by any court with a conscience.”
The decision of the Court in punishing the late E.M.S. Namboodiripad
in 1970 was “a serious blot in the Supreme Court’s history.” Justice
Reddy takes the view that the Court should not have punished
Arundhati Roy. “The demolition [of the Babri Masjid] took place with
the Supreme Court almost a mute spectator. The Court failed to take
any positive steps to save the situation.” The 50 per cent limit on
reservations imposed by judicial fiat “may indeed be considered an
amendment of the Constitution by the judiciary which, of course, is
beyond its competence.”
|
Lovers of
Nano forget Singur. Indian national banks are issuing
advertisements saying “A Nano for every Indian” at a time when
India’s
per capita food intake is the worst in a decade. Mass killers
are joining hands with engines of neo-liberal growth. What
doesn't bother the middle class doesn't bother the Supreme Court
either. |
|
There is a
scathing criticism of the Supreme Court cases on Hindutva and on the
decisions restricting the right to strike and bandhs; and on matters
internal to the judiciary, including current processes for
appointment of chief justices. The greatest figures in the judicial
pantheon are not spared clinical scrutiny —the late Y.V. Chandrachud,
Chief Justice of India for some eight years, is described as having
“failed to achieve anything exceptional”; and Chief Justice M.N.
Venkatachalliah is described as a judge for “whose judgments one
would search in vain.” Whether or not one agrees with his views, his
book is a welcome move towards greater openness of judges in
discussing the role and work of courts.
The utter
blindness of
India’s Supreme
Court is in keeping with the class that talks of neutrality of law
as if the judges exist as human beings outside the purview of values
and thought processes that all other human beings are impacted by.
The ideals of not be partisan is stretched to claim that there is no
place for politics in law and justice. This is nothing but complete
hypocrisy of those who know very well that law and justice are
heavily political entities and constructs and it is better to
recognise this than to be part of the sham.
No wonder
India’s middle
classes also walk the path shown by the Supreme Court and the
self-appointed town hailers of the majesty of the law who demolish
mosques, gulp millions in fodder scandals or talk of cutting the
hands of Muslims but praise the majesty of the law that always takes
its own course. If it has no intention of taking the course of
justice to the people, naturally it takes its own course. A course
that India’s middle classes being nursed on neo-liberal values and
capital love to take themselves on.
 So
a Sarabhai wants to fight elections and an ABN Amro bank executive
wants to change society. Both have a skewed understanding of
politics. Sarabhai wants to ask Advani why he did not take up issues
of Gandhinagar’s rural areas in Lok Sabha and why he did not spend
all of his Rs 10 crore of MP Local Area Development fund. ABN Amro’s
Sanyal is angry that Mumbai is not getting enough money from the
Centre even though it contributes Rs 95,000 crore to the central
kitty of taxes. Sanyal was jolted by 26/11, having failed to be
jolted by farmers’ suicides, malnutrition deaths, female foeticide,
Gujarat
riots or anything else. Sarabhai says she too was jolted by 26/11,
and has expressed surprise that slums in Gandhinagar do not have
toilets.
How much does it
take our good citizens from the middle classes to discover the lack
of toilets in slums?
All these are
well meaning, honest, beautiful people-like-us who want to do good.
They too, lest you fail to notice, have full faith in the majesty of
the judicial process, the neutrality of
India’s Supreme
Court and the hidden truth in the law’s ability to take its own
course. Their politics is simple. It starts with 26/11, or the
debate on reservation, or the Jessica Lal case. Of and on, they may
sign a petition for building a new India of equal opportunities, and
their mantra will be to end the quota system. They will all hail the
Supreme Court, and their faith in the neutrality and merit of
India’s judicial system will be strengthened. An odd fodder scam
will not bother them much, they can always make up by making fun of
a Bihari politician in laughter challenge programmes.
They cannot see
Hindutva politics but like Navjot Sidhu’s corny jokes. Ideological
fights are petty politics for them. They do not believe in the
politics of Left or Right; they claim to believe in some higher form
of politics in which the ideal is divorced from politics.
 They
love the Nano and forget Singur. They wish you well. They want
everyone to have a Nano at least. They have no problems with State
Bank of
India
issuing advertisements saying “A Nano for every Indian” at a time
when India’s per capita food intake is the worst in a decade.
India’s Supreme
Court cannot and does not engage with the fact that farmers in India
are committing more and more suicides ever since the country’s
growth rates are rising. ABN Amro contributes to such a growth
pattern. Sanyal works for ABN Amro. There are many Sanyals, and
there are many ABN Amros. Sanyal does not come into politics because
of suicide rates, Sarabhai is not jolted by the fact that a farmer
has to buy food grain from the market for his family. What does not
bother the middle class good people does not bother the Supreme
Court either.
The official
figure of the number of farmers who have committed suicide in
India between
1997 and 2007 now stands at a staggering 182,936. It is not enough
to jolt the Indian middle class, or the Supreme Court. It is jolted
by 26/11.
A country in
which a large majority depends on farming, millions of small and
marginal farmers are net purchasers of food grain. They cannot
produce enough to feed their families. Hunger among those who
produce food is a very real thing.
Per capita net
availability of food grain has fallen dramatically among Indians
since the reforms began: from 510 grams per Indian in 1991, to 422
grams by 2005. That’s not a drop of 88 grams. It’s a fall of 88
multiplied by 365 and then by one billion Indians.
But we love the
progress that
India is making.
India’s middle classes want to take the country ahead and make it a
global power. They are enthused by the progress. Their spirit is not
dampened because of the fact that the average poor family has about
100 kg less today than it did just ten years ago; their spirit is
lifted by the fact that the neoliberal model that pushed growth
through one kind of consumption also meant re-directing huge amounts
of money away from rural credit to fuel the lifestyles of the
aspiring elites of the cities and countryside. That’s why when
private banks like ABN Amro opened the highest number of branches in
India ever, India’s national banks shut down the highest number of
branches in rural areas. That’s why there were so many people at the
five star hotel when 26/11 happened. That’s why so many editors
called the five star hotel their second home. That’s why India’s
middle classes saw the Taj in Bombay as the icon of India. They
cannot and do not want to see that it is an icon of a class. Just as
for another class, one of the prominent slogans of freedom struggle
was “Tata Birla Hai Hai.”
It is good that
people get jolted by something. That
India’s law and
courts that always take their own course get jolted by something.
Mumbai got the attention with 180 deaths on 26/11. It is also the
capital of the state which saw, as per official data, 40,666
farmers’ suicides since 1995. Of course, with very little media
attention.
India’s Supreme
Court and India’s middle classes want to develop India at a rate
much faster than the politicians want to. So the Supreme Court has
no compunctions in raising the height of Narmada Dam, and the middle
classes want India to have giant corporate hospitals, sky scrapers,
flyovers, a Burj Dubai in every town. Talking about networks of
small dispensaries is passé, talk rather of the possibility of
medical tourism. Let the poor villager die of something as simple as
gastroenteritis.
This is our
vision of development, and this is how it operates in tandem with
the so-called apolitical judiciary. Look Mama, we're world class.
Our Supreme Court is devoid of all politics, and 26/11 has awakened
our soul. After 9/11, we were all Americans. Now we are all truly
Indians. The rest may well commit suicide. Be sure, the Supreme
Court will take no suo motu notice. And if a quill moves, the law
will send P Sainath to jail. He can rot with Binayak Sen and both
discuss the interface between farm impoverishment, lack of land
reforms and rise of naxalism. And yes, we do have a jail reforms
programme if you think we are apathetic to the rights of the
prisoners.
Awakened
conscience of a Sarabhai or Sanyal would surely not need the two
measly votes of Sainath or Binayak Sen. The middle class has risen
above politics, just like our Supreme Court. The ideal is being
achieved. Its growth rate matches our ambition to see
India as a super
power.
8 April 2009
|
Read Also