This phenomenon is not just a matter of individual judges or individual cases. It is now a systematic phenomenon with deep institutional roots.
The Supreme Court was right to grant Arnab Goswami bail. But Justice SA Bobde’s reported intervention, that the Supreme Court was trying to discourage the use of Article 32, unwittingly let the cat out of the bag.
In political science literature there is a familiar term — democratic barbarism. Democratic barbarism is often sustained by a judicial barbarism. The term “barbarism” has several components. The first is the overwhelming appearance of arbitrariness in judicial decision-making. The application of law becomes so dependent on the arbitrary whims of individual judges that the rule of law or constitutional terms no longer have any meaning. The law becomes an instrument of oppression; or, at the very least, it aids and abets oppression.
This usually means weak protection for civil liberties and dissenters and an unusual degree of deference to state power, especially in constitutional matters. The court also becomes excessively concerned with its version of lese majesty: Like a scared monarch, the court cannot be seriously criticised or mocked. Its majesty is secured not by its credibility but by its power of contempt. And, finally, there is barbarism in a much deeper sense. It occurs when the state treats a section of its own citizenry as enemies of the people. The purpose of politics is no longer equal justice for all: It is to convert politics into a game of victims and oppressors and ensure that your side comes up the winner.
The Indian Supreme Court was never perfect. It has had its dark periods before. But the signs are that it is slipping into judicial barbarism in the senses described above. This phenomenon is not just a matter of individual judges or individual cases. It is now a systematic phenomenon with deep institutional roots. It is also part of a global trend, of a piece with developments in Turkey, Poland and Hungary, where the judiciary aids this kind of democratic barbarism. To be sure, not all judges succumb to this; there are still pockets of resistance in the system. There will also be instances of grand pronouncement of principles on behalf of liberty, an occasional relief granted to a deserving plaintiff, to preserve a thin veneer of respectability for the institution, while its daily practice continues to abet the rot.https://images.indianexpress.com/2020/08/1×1.png
So what are the symptoms of judicial barbarism? The court has refused to do timely hearings of cases that go to the heart of the institutional integrity of a democracy: The electoral bonds case, for example. It is no secret that the rules for the grant or denial of bail by the Supreme Court, and, correspondingly, by several high courts, have reached new levels of arbitrariness. But it is important to underscore a point here.
As any undertrial knows, encountering justice in the Indian legal system has always had an element of luck to it. But we should not mistake the distinctiveness of the current moment. Patriots like Sudha Bharadwaj or thinkers like Anand Teltumbde are being denied bail. Umar Khalid was given a minor relief in being allowed to step outside his cell but the fate of so many young student anti-CAA protestors remains uncertain. An 80-year-old social activist who is suffering from Parkinson’s was denied a straw, and the court will do a hearing in its own time. One can’t think of a more visible manifestation of sheer cruelty. Hundreds of Kashmiris were detained without habeas corpus redress.
All of these are not isolated instances of justice slipping because of the usual institutional inefficiencies. These are directly a product of a politics that sees protest, dissent, and freedom of expression all through the prism of potential enemies of the state. They are not equal citizens before the law. They are treated, without justification in many cases, as subversives, the only construct that democratic barbarism can put on disagreement. This construct is now directly aided by judicial power. And, it has to be said, the same phenomenon can be replicated at the level of states in service of a different political dispensation.
What starts as a selectivity on civil liberties will slowly creep into the ideological foundations of the state. As state after state is now contemplating legislation on “love jihad”, a communally insidious and infantilising construct, watch how the judiciary abets in legitimising this newest assault on liberty. We have gone past the stage where the highest court’s infirmities can be captured in the policy wonk-ish language of institutional reform. What is happening is more like giving judicial form to the language of democratic barbarism.
The Supreme Court was right to grant Arnab Goswami bail. It has finally issued a notice to the UP government over its arrest of journalists. But Justice SA Bobde’s reported intervention, that the Supreme Court was trying to discourage the use of Article 32, unwittingly let the cat out of the bag. Article 32 is one of the glories of the Indian Constitution that protects fundamental rights. It can be suspended only in a state of emergency. In some ways, discouraging the use of this article is a perfect metaphor for our times: We don’t want to formally declare a state of emergency but we might as well act as if there is one, as and when the need arises. Discourage, rather than suspend, the use of Article 32.
The fight against this is not going to be easy. The democratic barbarism, where every issue is now thought of through the prism of partisan combat, not public reason, has now infected assessment of the judiciary partly as a result of its own inability to project that it is above the fray. So much of the public discussion is about my favourite judicial victim versus yours that it is going to be hard to get a consensus on the rule of law. Ironically, the tradition of legal activism that is heavily invested in making the judiciary the arbiter of everything legitimises judicial intoxication. The trend still continues.
We may have our own views on the Central Vista project, for instance, but this is not the sort of issue the courts need to weigh in on. In seeking our minor policy victories from the court, we in some senses end up legitimising its major infractions on constitutional principles. Third, there is a culture in the Bar. There are a few voices like Dushyant Dave, Gautam Bhatia, Sriram Panchu, willing to call out the rot for what it is; but this has still not translated into a serious professional pushback. The complex of senior lawyers and judges still willing to defer to lese majesty of the courts, and comfortable with judicial barbarism, is still way too high. This may seem like a little graceless exaggeration, but when you see creeping hues of a Weimar judiciary, grace is no option for ordinary citizens.
This article first appeared in the print edition on November 18, 2020 under the title ‘Their Lordships & Masters’. The writer is contributing editor, The Indian Express