Justice, in normal parlance, is supposedly neutral and seemingly fair attainment of what is equitable, righteous and just in its moral correctness, ethical consideration, rational perspective and from legal point of view. Edmund Burke sees justice from the prism of humanity and reason while Mahatma Gandhi has evoked the conscience to envision justice. Bentham upheld utilitarian principles that promote human happiness while according to Ambedkar, justice entails equality, liberty, fraternity. While John Stuart Mill explained utilitarian concept of justice John Rawls conceived justice in terms of primary social virtue which entails equality in assignment of rights and duties and presumption of equality regarding socio-economic goods. Nussbaum interprets justice using capabilities approach while Boylan has used the concept of right-based justice. Hence, it may be said that the aim of justice is not the victory of an interest of one or the other party but the aim is that the truth should prevail while upholding the dignity. In a just society, liberties of equal citizenships are secured not by political bargaining but by the principles of fairness and reasons.
The parties, individuals, institutionsor communities when approach the courts for justice expect and hope for fair and neutral adjudication of the legal matters in accordance with rule of law. The courts as neutral arbiters are expected to protect the rights, provide the remediesand fix the accountability of the parties while ensuring due process of law and maintaining social order in the process. Technically, the courts are expected to deliver justice, both procedural and substantive, however, this does not happen all the time. Frequently, the real issues get enmeshed with technical and procedural complexities as a result of which courts end up precisely in pronouncing judgements but could not deliver justice in its real sense. This has happened often in cases when women or men at the marginalized end assert their rights as citizens, the courts end up protecting the privileges of those who are in dominating positions.
Frequently, those powerful play the victim card and utilize resources to exploit those at marginal end during the contestation, thus courtrooms are not the places where parties stand at equal footing. However, the courts being swayed by the display of power is the dangerous trend. Recently, in many cases this has been evident when the courts are selectively picking up evidences, using fallacious arguments and convoluted constructions whileconstitutionally otheringthose on margins. This is a dangerous trend. Deflecting the debate by the guardians of the constitution has been seen in spate of recent judgements, from CJI sexual harassment case to NRC issue, CBI Director Alok Verma’s case, Electoral bonds petition,to adjourning petitions on Article 370 and reluctance to hear Kashmir habeas corpus petitions, Rafalematter, mystery surrounding collegium decisions and transfer of judges.Recently Sabrimala verdict referring it to larger bench reflect the manner in which women’s rights within Hindu religion are being crushed. Many such decisions indicate that a silent strategy is being usedstrategically to marginalize women, dalits and Muslims to reduce them to second class citizens.
Power tactics as deployed in the court rooms are well evident in the CJI sexual harassment issue, where while evading the principles of natural justice, CJI himself called for special bench headed by himself and launched attack against complainant stating that it is an attack on independence of judiciary. Lack of transparencyduring the process indicates that the process was to cover up the matter rather than a truth finding mission and the manner in which the matter culminated in giving clean chit to CJI raised questions about the credibility of the entire process. Further his remarks on NRC process signifies his clash of interest with the matter and many of other such embarrassing actions have raised questions about the accountability of the institution towards people and towards the Constitution.
Similarly, in Ayodhya verdict, initially the bench was changed when earlier it was heard by three judges bench, later five judges bench was announced using CJI’s special powers. The secular court went on to adjudicated on the basis of faith and beliefs of upper caste Hindu communities rather than on the basis of facts and evidences and rewarded the privileged majoritarian party while overlooking its crime of committing multiple assaults ravaging thousands of innocent souls in lieu of pittance while awarding five acres of land for building a mosque as restitution without prescribing punishment for those who massacred thousands in communal violence for years.The restitution and compromise is imposed in situations where two parties are at unequal footing. The reading of judgement shows lack of imagination and self-contradiction which also goes against the principles of secularism, equality or fraternity as enshrined in the Constitution.
Ayodhya Verdict: Faith, Facts or Anarchy?
Even earlier too, on April 28, 1976, in ADM Jabalpur v SS Shukla, the five judges bench of Supreme court ruled against enforcement of fundamental rights during emergency, however, Justice Khanna in his dissent opined that even in absence of Article 21, the state government has no power to deprive a person of his right or liberty without the authority of law. In 2019, this discourse favoring the powerful and the privileged has been repeated in the case of Ayodhya verdict. This time there was no dissent. In this case, the subject of contest was the idea of India, protecting its diversity and upholding secularism against the majoritarian assertion, but the court, dominated by five male judges, unanimously end up seeing it as a Mandir-Masjid issue and went into details of who occupied the disputed land and who should acquire it. This is without realizing the fact that it is not a dispute between Hindu majority and Muslim minority of India or a dharamyudh between followers of Ram and Rahim, rather it was the assertion of entitlements between those who claimed to be theself-styled representative and custodians of sentiments and interests of both the religions. The court while adjudicating the matter, instead of affirming citizenship rights of Muslims, gave them five acres of land as restitution. The religious imagination prevailed over logic, rationality, historical evidences and legal reasoning. The verdict overlooked the fact that when the constitution came into being, it was mosque that exist and its demolition has been documented in various records. The architect of crime have not been penalized as the case has been dragged intentionally over years.
Constitutional norms are betrayed
While pronouncing the Ayodhya verdict, the court overlooked the fact that the Indian constitution has developed a charter for protection of rights of minorities – education, culture and religious. No special privileges are being granted to Hindu majority. During constitutional debates, Ambedkar has clearly pointed out that for constitutional and institutional safeguards to check majoritarianism and protect rights of minority and stated that though Hindus are majority it does not automatically lead us to Hindu rule. Judiciary as a separate and autonomous institution has a fundamental function to protect this spirit of the constitution. It cannot replicate the will of legislature or executive. Yet, when the self-contradictory judgement prescribed construction of a Hindu temple on the contested site while destructing a mosque it is departing from the principles of judicial counter-majoritarianism while abandoning the idea of justice and sanctifying aggression.
A tombstone of democratic ideals is being created
The struggles in New India are harsher and severe than that of brutalities impinged by the advent of neoliberal economy. Today, hatred rules conscience as bigger national tragedies are claiming consciousness day by day. Poor, minorities and underprivileged are marginalized at a bigger scale as more and more tombstones of liberal and democratic ideals are being erected. The forces dismantling the idea of India are given the preference over the rule of law or idea of justice while upholding revanchist practices. The political willto appease Hindutva bandwagon dominates over the process of adjudication and replaced the discourse of democracy, pluralist ethos, secularism and polity within the nation. For the sake of peace and tranquility, the idea of justice dispensed with while majoritarian coercion was upheld.
Ram rajyashould be the priority
The arbitrariness of the judgement failed to understand the notion that the Hindus who are the believers of Ram if are really concerned about His philosophy must have preferred establishing Ram rajya over construction of a temple and Ram rajyaimplies peaceful co-existence of diverse communities. Lord Ram, if exist today certainly may not prefer placing idols by demolishing a mosque or lynching human beings in name of religion, all of which are anti-Hindu and anti-constitutional activities. Also, if Ram rajyaimplies establishing a just society, it may not then reward criminals for their illegal actions and silence dissent. Further, Lord Ram cannot be represented by one organization in a land where Hundred Ramayanas exist simultaneously. However, while pronouncing the supreme verdict all such arguments have been overlooked. The judgement therefore in no way prefer faith or facts but has asserted chauvinism, majoritarianism and totalitarianism. The basic tenets of Hinduism are being damaged and betrayed as justice is made to submit before the whims and fancies of unruly mob.
Mainstream political parties have played a significant role in dismantling historically religious monuments as Golden temple shrine or Babri Masjid for their vested interest while indulging in majoritarian appeasement. Though the some of the parties are considering to file the appeal against the decision, yet, reclaiming democracy and republic and re-institute the ideals of liberty, justice and equality is vital to close the chapter of shame before any other historical monument is shattered and demolished for the sake of politics of Hindu vote bank. For the sake of restitution or tranquility, the constitutional values and rules of law cannot be compromised by the courts as the neutral arbiter of justice. It is the duty of the courts to protect and nurture the idea of justice, democracy, peace and more importantly the idea of inclusion. Correcting the wrongs is important while balancing the dynamics of power and that requires sensitivity and accountability on the part of courts. Essentially fixing accountability of the court itself regarding procedural and administrative dealings requires attention in the current context. The apex court recently has confirmed that the office of CJI is a public authority under the RTI Act. This decision has reiterated judicial independence but with openness and transparency. However, much remains on the courts themselves to uphold the rule of law and to act as neutral arbiters of justice for justice cannot be guided by political will but by conscience and the values enshrined in the constitution. Justice in true sense needs to ensures freedom from oppression, and the one which fosters dignity and liberty of individuals, communities and societies.
The author is an advocate, researcher and an activist working on gender, law, governance and human rights issues.