By M D Nalapat
Governance mechanisms in India should move from the 19th to the 21st century.
Several among the 1.5 million strong legal community in India would
have tuned in to the US Senate hearings on the confirmation of Brett
Kavanaugh as a Supreme Court justice. Unlike in India, SC judges in that
country are appointed for life, and as is the case here as well, wield
awesome power. Although relatively immune once in office, the US
nomination process takes place in public view, thereby giving an
opportunity for the country to understand the personality, character and
views of the individual who will soon join the other eight justices on
the US Supreme Court. In recent days, the Supreme Court of India has
moved towards transparency in its functioning by permitting live
streaming of proceedings in specified circumstances. Over not too
considerable a period of time, it is hoped that such a throwing open of
the Court’s judicial activity to the public will be the rule in cases
decided by it and not the exception. Live streaming of every court
proceeding in India would substantially improve trust and confidence in
the judicial system among the public, to many of which the process seems
a twilight zone into which people enter and manage to come out decades
later, all too often with fortunes and careers destroyed along the way.
This columnist knows two sisters living in Mumbai, who remain enmeshed
in litigation involving their property that got initiated four decades
ago by an individual claiming kinship, and with the conclusion nowhere
in sight. Meanwhile, their inherited property remains frozen and subject
to disrepair. There are hundreds of thousands of similar property cases
across the country, each blighting lives through a decades-long process
of resolution. India must be the only major democracy where an advocate
can bequeath a case to first his child and later his grandchild, so
long do some court proceedings take. And given the colonial legal
structure so tenderly preserved and added on to even by those who ruled
the country post-Independence, prison is not the default option, but the
only option for a bewildering array of “crimes” that do not count as
such in any other major democracy.
It was expected that Narendra Modi would take an axe to such laws
once he was sworn in as Prime Minister, but he seems to be saving such
action to a second term. Rather than wait for that to happen, the
Supreme Court of India has stepped into the hiatus and during the past
few days, has shown a commitment to freedom and democracy that needs to
be emulated by the other branches of the state. After 2014, there were
occasional flashes of Supreme Court activism aimed at colonial laws and
practices, such as the removal of a particularly toxic provision of the
Mahajan-Chidambaram-Sibal Information Technology Act. During the final
weeks of Chief Justice Dipak Misra’s tenure as Chief Justice of India,
such edicts have been raining down in monsoonal strength. The odious
practice of triple talaq was looked askance at, as also now the barring
of women of a certain age from the Sabarimala temple despite forests and
wild animals (save some in human form) having long disappeared from the
trails leading to that ancient shrine. Sections of India’s largely 19th
century criminal code that deal with consensual sexual relations
between those of the same gender went into the trashcan, as did
provisions mandating prison for those who won over the affections of
ladies not entirely in emotional thrall to their husbands. Perhaps the
Court may yet toll the funeral bell for that exemplar of colonial
intimidation, “criminal” defamation, in a context where the Modi
government shows no indication of doing so. Earlier, a relaxation took
place in previous judicial commands, such as the barring of liquor sales
within “staggering range” of highways. Or indeed the imperative of
playing the national anthem before any movie was screened. And now comes
the tossing out of an effort to indefinitely delay an SC verdict in the
matter of the Ayodhya dispute. This has opened the way for hope that a
decision on this very consequential matter could come within two or
three months, so that this issue would no longer be available to poison
brotherhood (and sisterhood) between two communities that have long been
sought to be kept asunder by troublemakers. It may be said of Chief
Justice Misra that nothing became him more than the activism displayed
during his final lap in office. Hopefully, incoming CJI Ranjan Gogoi,
whose dedication and integrity are common knowledge, will take off from
where his predecessor leaves the court, which is to ensure that it is
the spearhead of the necessary effort to ensure that governance
mechanisms in India move from the 19th to the 21st century. This should
include the shortening of the time taken for final decision in cases, as
well as the doing away with a British-era propensity of regarding jail
as the fittest abode for the natives of India. The Supreme Court is not
the handmaiden of the government, but the protector of the rights and
freedoms of a people living in what is presumed to be a democracy.
Given the dislocation caused by anyone enmeshed in legal processes,
not to mention imprisonment, a high bar needs to be set down the line
before cases get accepted, with only those of demonstrable prima facie
validity getting admitted. Most stay orders need to be avoided, so that
verdicts can get delivered within months, rather than decades. Mandatory
penalties need to be levied on those who misuse the court process for
reasons of harassment and blackmail. Greater and greater volumes of the
oxygen of freedom are getting pumped into the public space by recent
Court decisions, driving away the carbon dioxide of a colonial legacy
kept going by the bureaucracy and its political masters, so as to enable
as many as possible to extract as many bribes as a hapless public can
afford to pay. In India, the Sibal-Chidambaram duo appear to hold that
the individual who is forced to pay a bribe should be given even harsher
punishment than the venal politician or official demanding such
recompense. Recently, there have been severe dilutions on the ability of
investigators to bring to account senior bureaucrats. Such edicts
reduce the chances for whistle-blowing and the enforcement of
accountability, and should be cast aside by a Supreme Court that is
visibly a force for beneficial change in a country whose other
institutions and practices often have the opposite effect.
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