If you've been a keen observer of public discourse in India, as I have been for some years now, you are probably immune to the bizarre and outlandish statements made by the worthies holding public office. Like the Scowling Sherpa's revelation that "there is too much democracy" in India, or a Minister in Davos claiming that high unemployment is indicative of increasing self employment, or the Supreme Leader's assertion that not one inch of Indian land has been occupied by the Chinese, or a Minister for Human Resources in NDA I debunking Darwin's theory by maintaining that none of his ancestors ever saw an ape turning into a homo sapiens. We are, of course, the swine who should be grateful for such pearls of wisdom, but two recent pearls, cultured in our very own fascist laboratory, have taken even my post-Diwali asthmatic breath away.
Arguing for the government in the Supreme Court, the Attorney General made two astounding averments: one, that the voter does not have any right to know how his vote has been recorded or counted, and two, that the public does not have the right to know who has contributed how much to which political party. The first statement was intended to counter the very legitimate demand for a more extensive VVPAT (Voter Verifiable Paper Trail) verification of the votes cast in the EVMs (Electronic Voting Machines), the second was in response to the challenge to the Electoral bonds, which have effectively become the BJP's private ATM.
We have never been in doubt that these statements are a faithful expression of the BJP's private views, but the sheer brazenness of declaring it openly- and that too in court!- is mind-blowing. It is beyond arrogance and hubris, it shows utter contempt for the public, the Constitution and (dare I say it?) even for the highest court in the land. Translated into language which we porkers can understand, the government is actually saying: we will have our way, we don't give a tinker's curse for what the citizenry thinks or what the court decides; we have the majority in Parliament (even if Mahua Moitra and her Lui Vuitton bags are not expelled) and can pass any ordinance or Bill we are inclined to. Misplaced confidence and hubris, did you say? You would be wrong, dear reader, because past events have proved that they are right. The judiciary has never been an obstacle to the ruling party's rampaging depredation of our social, constitutional, legal and institutional landscape. One cannot but help feeling that the govt's impudence is due in no small measure to the court's accommodating and obliging behaviour.
The Supreme Court never fails to disappoint, and has done it again in two recent judgments: on the petition for legalising same sex marriages, and on Manish Sisodia (the Delhi Deputy Chief Minister)'s application for bail. These petitions had been vehemently opposed by the government. Both were dismissed, quite against the run of play. Both judgments came as a surprise, not only because of the inherent contradictions in the judgments themselves, but also because in comments leading up to the judgments, the Court had appeared to favour the petitioners' cause.
The order in the same sex marriage case is retrogressive and mired in a medieval mindset, which exposes the Court's disconnect with a rapidly changing social order. By refusing to legalise same sex marriages, or allowing same sex couples to adopt, or giving them civil rights as a couple, the Court may have warmed the cockles of the BJP/RSS heart but it has also given a thumbs up to obscurantist forces. By directing that the government set up a committee under the Cabinet Secretary to examine the matter to confer more rights on the LGBTS and queer communities, the Court is only displaying its naivete, or deliberately deluding itself: does it really expect an officer who is on extension in service and who has been party to every unilateral and illiberal decision taken by the present regime, to propose any expansion of the rights of this section of society, something this government is vociferously opposed to?
The logic in the Manish Sisodia case is even more difficult to comprehend. In the course of arguments leading up to the judgment the Court had time and again castigated the prosecution for lack of any evidence against the accused. It had even gone so far as to say that there was no money trail to link Sisodia with any bribe, and that the ED's (Enforcement Directorate) case would collapse in two minutes during trial. And yet, it denied him bail and sent him back to jail. Such a vacillating and equivocal attitude can only encourage the govt. to lock up more people for months, confident that the courts will not enlarge them on bail, evidence or no evidence. Clearly, this order is based more on presumption than on solid evidence.
The Electoral Bonds case was taken up after five years, the delay allowing the BJP to mop up almost Rs.5500 crores, many times more than that received by all the other parties combined. The court has now concluded the hearings and reserved its order more than two weeks ago, again giving the BJP the opportunity to open the window for another tranche this week. This will enable it to secure all the donations it needs for the 2024 elections: whatever the court now decides will effectively be irrelevant for the coming general elections, and after that, who knows- we're all dead (or conveniently reemployed) in the long run, in any case.
In the Maharashtra disqualification case between the two Shiv Sena factions the Speaker continues to ignore, if not defy, the SC's repeated orders for a quick decision. The Speaker has been given such a long rope that he is using it to strangle whatever vestiges of democracy remains in the state. The Article 370 case similarly hangs in the limbo, the orders reserved, and democracy continues to elude Jammu and Kashmir. Umar Khalid continiues to rot in jail, as do the Bhima Koregaon accused, with their trials nowhere in sight. The Bilkis Bano case has disappeared from the radar, if not the court's registry. Whatever happened to the Pegasus Committee report, or the SEBI's investigation in the charges against the Adani conglomerate?
With every day's delay in deciding such crucial cases, or in delivering reserved orders, the status quo (which can only favour the government of the day) becomes a fait accompli, all the more difficult to reverse. It emboldens the government to continue with its bulldozer tactics, and to take the court for granted. Which is why the Attorney General can make the kind of statements he does and continue cocking a snook, as it were, at the courts. Earlier this month he even cautioned the Court (was it a veiled warning?) not to cross its limits, when the CJI (Chief Justice of India) fixed 31st December as the deadline for the Maharashtra Speaker to decide the MLAs' disqualification case!
It may be that the Court wishes to avoid a confrontation with the executive, and therefore "urges" when it should direct, or "requests" when it should mandate, or "persuades" when it should command. But such a timid approach is not working; it takes two to avoid a clash, and this government is perpetually in an adversarial mode. Moreover, it also reduces the majesty of the law and dilutes the credibility of legal institutions in the eyes of the citizenry. No amount of table thumping rhetoric and platitudes from pulpits outside the court can define a judge- what defines him or her is her judgment inside a courtroom, and that has been sadly lacking for the last few years.
What we need is for the Court to administer the law without fear or favour, to practice within the court what it preaches outside it at seminars, conventions and in key-note speeches. We need fewer sermons, obiter dicta and moral grandstanding from the judiciary and more concern for our foundational freedoms and rights, stern messaging to the government, and imposition of consequences for defying orders. "Stooping to conquer" may be an interesting phrase for an Oliver Goldsmith play, but entirely inappropriate for our current political environment; the phrase "Flattering to deceive" may describe it better, don't you think?
Truth needs no comments !
ReplyDeleteNot just a crying shame, but a very dangerous situation for the country that the one last institution left standing is now down on it's knees, having capitulated its responsibilities and joined the ranks of all the other institutions built up over decades.
ReplyDeleteThe current dispensation has pushed us onto a slippery downward slope, leaving the country to hurtle down into an abyss.
Modi n Amit Shah Duo is in complete control of Administration, And also on constitutional Authorities. Your long long arguments can't hold against their power, Jai ho
ReplyDeleteCouldn't agree more with blog & comments.
ReplyDeleteHowever, in the LGBTQ matter, while believing that couples must be accepted to live as a family, including the adoption of children, bequests and inheritance, the word "marriage" connotes biological progeny. Numerous synonyms, like "legal union", "legally wedded" etc could, I am sure, be acceptable to all.
Is it any wonder when judges have abandoned moral rectitude and adapted to survival by compromise? After all we are in Amrit Kaal.
ReplyDeleteHaving said which, if I may add, it has been a nasty little surprise to find feet of clay among the highest level of judiciary in the new regime.
ReplyDeleteThe shadow between what is said, "precursor" as it were, and the action thereof, is bordering on breach of trust and betrayal.
Mr Sisodia's continuance in jail is an absolute shame, and denial of bail is nothing short of infamy.
Abhishar's hugely evocative item showing husband and a very weak and obviously ill Mrs Sisodia in tearful embrace, would/ should have softened the hardest of hearts but if there isn't one in the first place there's nothing to soften.
I don't know what's going to happen to the electoral bonds and other critically important, some even impeachable matters.
Ironically, even some of the educated can’t understand what is happening and continue to support the dictator - total autocracy. He has brainwashed the majority with his Hindutva agenda. His Bhakts should ask how he paid all those MLAs to topple the state government…. By RTGS they must think/believe. It looks like another East India Company is forming with A & A. It is the Most corrupt government ever to exist in India to date.
ReplyDeleteSpot on! You voice the concern felt by all of us. It's not disappointment but a complete let down by the courts failing in their duties to uphold the constitution and human rights. It is almost predictable what the orders will be and in complete sync with the governments view. What will common citizens do? Where can they turn to?the NHRC is a bigger farce. History will not be kind to the courts and will record their failures when they were needed the most. Worse is the pious preaching we hear from various platforms! Sickening that actions don't match their words!
ReplyDeleteSadly true
ReplyDeleteDepressing truth....😔
ReplyDeleteSome porkers are more unequal than others
ReplyDeleteBang on. The judiciary has become more and more submissive and it doesn't augur well for the nation. It only shows that institutions have lost their spine. As for the govt, I refuse to comment because they aren't worth it.
ReplyDeleteJudges are not known to disrobe into tranquil senility upon retirement. They are aware that an assortment of sinecures awaits them from the day they bang their gavel the final time. Anecdotes are aplenty in the ocean of Indian justice, taking root in the need of the Executive and the Judiciary to shake hands for their own furtherance. With the government being the biggest litigant in India, it is difficult for the Judiciary to ignore the Courtesan of Compromise, reducing judicial morality thereby.
ReplyDeleteMr. Shukla’s rebukes are scaffolded evidentially to make them stand. Still,
to be fair, CJI D. V Chandrachud and Justice Kaul had adjudicated in favour of marital status to be granted to the LGBTQ community, but were outvoted by the remaining three judges on the bench. Nonetheless, it has been granted the right to cohabit, a big step in itself.
370 and Electoral bonds have both been heard entirely and the matter is now at the verdict stage. The disappointment, more so in the case of electoral bonds, is inescapable and illuminated in the blog.
370 should be verdicted logically before December-end this year when Justice Sanjay Kaul is due to retire.
One feels for Sisodia. Interestingly, one of his judges is Justice Sanjiv Khanna, who was also on the 3 bench panel that exonerated Justice Ranjan Gogoi of all charges!
Ex CJIs Dipak Mishra and his immediate successors Ranjan Gogoi and Sharad Bobde, are worthy of the sobriquet “mice under the throne” ** on inspecting their actions, inactions and judicial evasions, all primarily tilted towards ensuring ease of passage for the Central government.
The embedding of the Executive and the Judiciary within the Constitution as currently engineered intrinsically paves the way for both to have a deeply transactive relationship with each other.
** Article on Sharad Bobde in The Wire.
"the government is actually saying: we will have our way, we don't give a tinker's curse for what the citizenry thinks or what the court decides; we have the majority in Parliament .... and can pass any ordinance or Bill we are inclined to. Misplaced confidence and hubris, did you say? You would be wrong, dear reader, because past events have proved that they are right."
ReplyDeletehypothetically, in the westminster model of first past the post with multiple candidates standing for election, a candidate securing twenty percent of the vote can win provided each of the others secures less than 20%. so the winning candidate, supported by a mere 20 percent of the electorate, may not have secured popular mandate since 80 percent did not turn up at polling booths to endorse this 'winning candidate'. will not these numbers put into question all claims of having the popular mandate.
it cannot be denied there will be voters who have not voted even though they supported the winning candidate, concluding their candidate would win anyway so they don't need to queue and vote. however, staunch supporters tend to participate.
logically, will it be reasonable to conclude that whilst boris johnson in 2017 won the elections to his parliamentary constituency having secured 50.8 percent of the votes, however as the turnout was 66.8 percent, a full 66 percent of the eligible voters in the constituency failed to grant him the mandate to represent them.
at a national level, nelson mandela's party, the ANC, in the 1994 elections secured 62.65 percent of the vote to win the elections; the turnout was 86.9 percent, and with this the ANC could reasonably claim that while they did not secure the vote from 45.6 percent of the eligible voters they did enjoy a mandate from the majority, viz. 56.4 percent of the electorate.
compare this with india's first general election, 1951-52. the turnout was 44.7 percent and the INC secured 44.99 percent of the vote, however, this also meant that 79.89 percent of the eligible people of india failed to come out to vote INC. so jawaharlal nehru may have had the votes to form a government but did not have any mandate to amend the constitution; the same constitution with its westminster model that need not reflect the will of the majority of the people but had enabled INC to come to power. for instance he did not have the mandate to reduce, degrade any of the fundamental rights into constitutional rights, as he did with the first amendment. fundamental rights are inalienable rights that protect the citizen from even the government; international jurisprudence terms these as universal human rights. constitutional rights are rights guaranteed by the constitution and these can be altered, varied to the disadvantage of the people with an amendment to the constitution. the british parliament's bill of rights, 1689, protects free speech in that country. as does the bill of rights that are an integral part of the original, initial US of A constitution by protecting free speech [first amendment]. in both instances governments, or parliaments [congress] may not, shall not, will not cross the line. in the case of india, with the first amendment act, 1951, free speech and many other fundamental rights were turned into constitutional rights - with multiple patronage and privilege, whimsical, selective interpretation provisos of 'conditions apply'.
ReplyDeleteironically, in the 2014 elections BJP too failed to secure the vote from 79.4 percent of eligible voters. BJP secured 31 percent of the votes cast from the 66.44 percent turnout. in 2019 a full 73.5 percent of the electorate failed to vote BJP. democracy in india as a tyranny of the dominant minority continued. in 1951-52 it was the 'mission compound hindus' who were said to have received an overwhelming mandate; by 2014, 2019 the 'bazaar hindus' took centre stage shoving the erstwhile pretenders, poseurs to the wings; traditional hindus versus nationalist hindus.
can it be concluded that in indian elections a variant of the pareto principle is showing up repeatedly. the 80:20 ratio. in any debate there will be twenty percent for the motion, twenty percent against, and 60 percent will be undecided. so all that master strategist amit shah needs is ensure all diehard supporters of BJP do turn out, and secure support of another 10 to 15 percent from the 60 percent undecided. the 30 to 35 percent mandate rendering unassailable the continuation of sangh parivar hegemony not with standing 65 to 70 percent being indifferent, even opposed to nagpur-jhandewalan nationalist socialism [bharatiya janata]