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The recent brouhaha over SC’s hat-trick judgements raises eyebrows, seeks some answers.

Major General Mrinal Suman’s comment on Supreme Court of India has triggered the debate on the judicial domain of higher judiciary. Mrinal Suman comments, “If judiciary wants to govern the country, let it seek the people’s mandate.” He argues, “The higher judiciary is not mandated to govern the country. For, only people’s elected representatives get mandate to govern the country; and that is the essence of democracy.”

It is also appalling to note that comment is coming from someone who has been a highly decorated officer in the armed forces.

It is interesting to watch many people fulsomely insulting higher judiciary, but it is also a fact that the Indian judiciary is equally accountable to the nation vis-à-vis executive and legislative, and the people have the right to question judiciary’s function and circumference of its jurisdictions. This expression of resentment is obvious as supreme judiciary has taken strident steps to shake the foundations of majoritarianism and patriarchy which are the inherent codes of Indian society.

Decriminalisation of colonial Section 377(on homosexuality), Section 497(on adultery) of the Indian Penal Code to allowing entry of women in Sabrimala shrine— Supreme Court disappointed many religious people.

If the apex court starts adhering to religious appeasement policies, a truthful adjudication will have to wait for an indefinite period. As I argued earlier, the interference in legal proceedings in a big democracy like ours is probable. But those who protect the basic human rights against all odds are undeniably heroes without capes and our strong judiciary confidently stands among them.

Article 32 of the Indian constitution gives an extensive original jurisdiction to the Supreme Court in regard to enforcement of fundamental fights. Higher judiciary is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them. The Supreme Court, under powers of judicial review, can declare a law as unconstitutional or ultra vires if it contravenes any provisions of the Constitution. An impartial judiciary, independent of the legislature and the executive, is one of the prime features of the constitution.

It is very important in a diverse country which boasts more than sixteen hundred mother tongues scattered among several religions and beliefs to have a uniform code of constitutional morality.  Lead counsel in Joseph Shine v Union of India, Kaleeswaram Raj told me following the SC verdict on Adultery [ref: Sabrang India]:

“Constitutional morality in the given case leads to a plea for minimal State action in private intimate decisions. Every individual aberration in a family cannot justify the State’s interference using its police force. A citizen is entitled to preserve a “lawless zone” around her for her true organic development. People can always reject infidelity and even fight against it. But its criminalisation is a different matter altogether. One needs to fight against such illegitimate state action. That is a libertarian political struggle, which is based on constitutional morality, which is also a form of political morality. The state should be politically fenced out from the individual’s deviations and aberrations.”

Every citizen deserves justice: this is an important duty of democratic establishment in India. Living in a democratic system alone does not guarantee justice to citizens in all its functionality. We should reflect on the question of mass exclusion of names in the National Register for Citizens in Assam which denies social and economic justice as well as the political justice.

This ideal of a just and egalitarian society, as argued by several jurists, remains as one of the foremost values of the Indian Constitution.

Promotion of fraternity and liberty is essential to capture the essence of the individual dignity. It ensures equal participation of every individual in all the processes of democratic governance. A vast democracy can’t function properly without legitimising these segments of constitutional values. If democracy starts following Mrinal Suman’s roadmap, this may put the country in peril. The enforcement of constitutional morality over social or religious morality keeps country safe, thereby suppressing the venomous political tuning and polarisation.

The right to protest peacefully, enshrined in Article 19 of the Indian Constitution, is being eroded across the country. In many instances, the police are cracking down on those demanding action or raising awareness about democratic issues. Therefore, we at Citizens for Justice and Peace moved to National Human Rights Commission (NHRC) demanding guidelines on how the Police behave with peaceful protestors.

If our executive had fully democratic commitments, questions like Suman’s wouldn’t have seen the light of day. Let us not forget the brutality of Hashimpura massacre.

Should High Court or Supreme Court seek people’s majoritarian mandate before hearing petitions related to majoritarian violence?

This, I believe, answers the questions regarding the ‘extreme’ outreach of judiciary.

The criticism of SC should be welcomed, for it shows Indian constitution’s vast precincts that allow its people to even question its judiciary, but people shouldn’t forget that apex court has chosen this role because bodies of the executive and the legislative are failing to follow their rightful duties. We shouldn’t forget that the founders of our nation conceptualised the higher judiciary as an appellate authority for an indefinite term, the goal was to protect and promote values our constitution embodies.

Author is a journalist and researcher. He can be reached at ujjawal.krishnam@protonmail.ch


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