Saturday 29 September 2018

Supreme Court delivers the oxygen of freedom (Sunday Guardian)

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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