The Populist Challenge To The Judiciary – A Dangerous Portent

The institutions provided by our constitution to safeguard democracy are in a mess, except perhaps one. Our polity has become vapid, venal. opportunistic, populist and, of late, unashamedly majoritarian. The bureaucratic structure has been bludgeoned into indifference, if not abject submission. The media is sometimes effective but commercialised to a degree that its credibility is now suspect. The only institution in which the people can still repose some faith is the higher judiciary – specifically the Supreme Court, High Courts and the NGT (National Green Tribunal) – though even with them the deterioration in quality, transparency and priorities is a matter of concern. Notwithstanding this however, the Judiciary has (most of the time) defended the Constitution admirably. It is, in fact, the only institution which stands between the country and anarchy today. It is, however, faced with a new danger – defiance of its authority under the garb of a “people’s mandate”.

This has been happening insidiously for some years now, both at the center and the states, but it is only recently that it has been given an official mandate. Its legitimisation was conferred by none other than our Union Finance Minister when, some months back, he referred to a judgement of the Supreme Court as the “tyranny of the unelected”. Mr. Jaitley is not only erudite and articulate, he is also an exceptionally gifted lawyer who chooses his words with care; we should not assume, therefore, that these words were simply flights of oratory. They were meant to convey a veiled message to the Court, viz. that public policy can only be framed by the “elected” (read politicians) and that any interpretation of the constitutional validity of such policy is also to be determined by those who are “elected”, namely, Parliament and state legislatures (and therefore, by implication, not by the Courts). Subsequent events seem to bear out the purport of this new doctrine which is fraught with danger for our republic.

A constitutional democracy is much more than majoritarianism or the “tyranny of the majority” which is what Mr. Jaitley appears to be espousing. The sheer weight of numbers, in the legislatures or in the streets (which is increasingly the same thing) cannot nullify the rights, responsibilities, separation of powers, differentiated roles of organs of the state, protections and safeguards which the Constitution provides. The job of ensuring this is that of the judiciary: if it also fails, then all is lost. But the politician would have won. The recent instances of an almost open defiance of the judiciary, therefore, should be viewed with concern by every discerning citizen of the country.

This dangerous trend is very much in evidence in some important cases over just the last two months. In all of them there were existing orders of the Supreme Court/NGT which were sought to be either defied outright or by-passed or nullified by legislation by both, state and central governments.

The most cynical of all these instances relates to the reservation for Jats in Haryana. The Supreme Court has time and again laid down the law on this vexed subject, viz. that total reservation cannot exceed 50%, and that reservation for OBCs must be based on tangible data on backwardness (for which state and central Commissions have been established). Successive govts have been attempting, for crass reasons of vote bank politics, to give the Jats reservations as OBCs, even though the National Backward Classes Commission has categorically recommended that they are NOT backward. Both the state High Court and the Supreme Court in 2015 struck down laws granting them reservation on these precise grounds. Instead of respecting these judgements, however, the BJP has capitulated to the thugs of the national highways and has defied the Courts by passing an Act on 29th March giving 10% reservation to the Jats and raising the total reservation to 67%. The Center is also poised to bring legislation, via a private member’s Bill, to do away with the statututory requirement to consult the NCBC in such matters. Both are a direct challenge to the SC. To be sure, this is not the first time that states and the center have sought to undo or circumvent the law to favour some politically powerful and muscular community or the other – in the past the SC has had to strike down similar reservations in Tamil Nadu, Rajasthan, Maharashtra and UP. But it begs the question: is it only the Supreme Court’s responsibility to abide by the Constitution?

In the “Jallikattu” case the center again created a legal flashpoint. This particularly barbaric “festival” of Tamil Nadu in which bulls are brutalised on the occasion of Pongal had been held by the SC to inflict cruelty on the animals and it had banned this sport. Spurred on by a potential ally (Jayalalitha) in the coming elections to allow it as a mark of respect for the people’s wishes the center earlier this year amended the relevant Act to permit bulls to be used for sport. It did this in the full knowledge that the amendment would be struck down by the SC, but it went ahead anyway. This again raises the question: was the govt. simply testing the waters or is this part of a deliberate ploy to weaken the Court by salami tactics? (The Animal Welfare Board of India challenged the amendment and it has been struck down by the SC. The central government is now concentrating its efforts to get all the members of the AWBI to resign for opposing a govt. policy!).

Take the most recent case of the imposition of President’s rule in Uttarakhand, where the govt. was dismissed just 24 hours before it was to take a trust vote in the legislature. Nothing as blatant as this has happened since Mrs. Gandhi imposed Emergency in 1975. This action also flies in the face of the doctrine which was first expounded by the SC in the SR Bommai case of 1994 and is now considered to be well settled law – viz. that the only place to test the majority of an elected govt. is on the floor of the legislature. By not allowing this to happen the BJP govt. again appears to be sending a signal to the judiciary: you may pronounce your orders based on the Constitution, but we shall do what is in our interest because we are elected and you are not! This way lies certain disater.

The state govts are also not to be left behind in this race to show the Supreme Court who is boss. Mr. Fadnavis of Maharashtra seems to have made it his personal mission in life to defy the SC and to impose his regressive brand of morality on the state. To set an example he has chosen the ten thousand dance bars of Mumbai which provide much needed, honest employment to lakhs of women. He banned them on grounds of “indecency” the moment he came to power. The ban was naturally and quite rightly struck down by the High Court and the Supreme Court. You would expect that Mr. Fadnavis would respect the orders of the courts, wouldn’t you? You would be wrong. For the last eighteen months this lamentable Chief Minister has ensured that the dance bars do not reopen: the moment the Court strikes down one order he comes out with another, and so on. In this infantile game of ” catch me if you can” he is showing immense disrespect for the majesty of the law.

The Badals in Punjab are playing out an even more dangerous version of Fadnavis’s game. The case of the Sutlej Yamuna Link Canal is one which has been festering for more than two decades, ever since the Supreme Court directed Punjab to construct its portion of the canal so that the waters of the Sutlej could start flowing to other states as per their water sharing agreements. This was first shown the finger by Amarinder Singh in 2002 who passed legislation abrogating unilaterally all agreements on water sharing. Challenged in the Supreme Court and expecting inevitable dismissal of this rogue legislation, the Badals will be hard put to explain why they have not complied with the earlier SC order in the nine years they have been in power. There is also an election in the offing, to win which they have nothing to show other than the thousands of crores their extended family has amassed. The solution? One which is becoming increasingly popular with politicians- confront the Supreme Court brazenly by stating that the people are opposed to the court’s rulings. This statement came in the form of another law rammed through by the Badals last month, returning to the farmers all the land acquired for the construction of the SYL. The logic is impeccable- how can the canal be built if there is no land available for it? In other words, make the SC order unimplementable. Last heard, this had also been challenged in the SC.

And the contagion is now spreading to powerful non-state actors. The BCCI is refusing to implement the recommendations of the Lodha Committee (approved by the Supreme Court) on the administration of cricket in India. It has been two months now but not a single recommendation has been implemented; instead the BCCI has flooded the Court with all manner of applications and objections.

Sri Sri Ravi Shanker of AOL fame continues to defy the NGT as regards the fine / compensation of Rupees five crores imposed on AOL for ravaging the Yamuna flood plains in Delhi. He first announced, in a rather un-Godly manner for a Godman, that he would rather go to jail, then he negotiated an arrangement by which he would pay Rs. 25 lakhs immediately and the rest by the 1st of April 2016. All Fool’s Day has come and gone and he appears to have played the trick on the NGT by not paying up. Now he says that he will only pay up after the assessment of the damage, IF ANY, is done (BY HIS OWN PEOPLE, NO LESS!). He has magnanimously offered to furnish a Bank Guarantee instead! The NGT is dithering over this last offer.

The problem with these repeated challenges to the judiciary is manifold. Firstly, it shows scant respect, if not downright contempt, for the judicial system: if elected governments themselves repeatedly disregard the law as laid down by the courts then the whole democratic fabric of the nation itself starts unravelling. Secondly, there is something unethical and irresponsible about passing the buck to the Courts for problems created by the political executive and further compounded by their lack of political will to resolve within the limits of the Constitution. Thirdly, such blatant brinkmanship conveys the fallacious and mischievous message to the public that the government is willing but the courts are standing in the way of the public getting what they want. In the long run this can only erode the majesty and stature of the courts: once this happens, the consequences can only be lawlessness, anarchy or fascism.

It must be said that the blame is not entirely that of the governments or the powerful entities who have long manipulated our judicial system. A large part of the blame has to be accepted by the Courts themselves. They have not asserted themselves in the same manner as they do when their individual or class privileges are concerned. There is no reason why contempt notices were not issued against Messers Jaitley, Badal and Fadnavis for their statements and actions. (Even the Supreme Court of Bangladesh – a far less evolved nation – has recently convicted two of its Union Ministers for contempt of court and for denigrating the stature of the Court by their statements). There is no reason why the Supreme Court cannot send out a clear message to ALL governments that any order or legislation by them that contravenes the law laid down would invite censure and costs. There is no reason to justify the NGT’s accommodating attitude to AOL. In this case the NGT has given all concerned far too much leeway: the so-called cultural festival should never have been permitted, the officers of the DDA and MOEF who gave permission for the event in defiance of the NGT order of January 2015 should have been proceeded against for contempt of court, Sri Sri should be sent to jail a-la Sahara Shri if he does not pay up as committed by him. I would be the first to acknowledge that the NGT is doing a commendable job in trying to preserve the natural environment, but its fulminations are becoming predictable as they are not being backed up by strict action. Imposing fines won’t turn a hair on a bureaucrat’s head because the fines are paid by the tax-payer. Fines should be imposed on the person (not the organisation), and a few need to be sent to jail for serial offences or negligence. The NGT is in danger of becoming what Dryden described as ” willing to wound but afraid to strike.” It is important that our courts dispel the rapidly growing impression that there are different laws for different people, and that they are loath to take on the elected classes.

The politicians, plutocrats and revisionists are making their moves. To the many layers of populism laid by the previous governments is being added the even more fissionable layer of majoritarianism by the present one. All their elements will sooner or later come to the higher courts- firebrand nationalism, bans of various kinds, status of minority institutions, religious conversions, autonomy of institutions, and much more that we cannot even conceive of at the moment. The future of this nation as a democratic republic depends on how our higher judiciary responds to these emerging legal and social challenges.

Avay Shukla

The author retired from the IAS in December 2010. A keen environmentalist and trekker he has published a book on high altitude trekking in the Himachal Himalayas: THE TRAILS LESS TRAVELLED. His second book- SPECTRE OF CHOOR DHAR is a collection of short stories based in Himachal and was published in July 2019. His third book was released in August 2020: POLYTICKS, DEMOCKRAZY AND MUMBO JUMBO is a compilation of satirical and humorous articles on the state of our nation. His fourth book was published on 6th July 2021. Titled INDIA: THE WASTED YEARS , the book is a chronicle of missed opportunities in the last nine years. Shukla’s fifth book – THE DEPUTY COMMISSIONER’S DOG AND OTHER COLLEAGUES- was released on 12th September 2023. It portrays the lighter side of life in the IAS and in Himachal. He writes for various publications and websites on the environment, governance and social issues. He divides his time between Delhi and his cottage in a small village above Shimla. He blogs at http://avayshukla.blogspot.in/