The Nazi regime in Germany has established the Sondergericht (summary courts or special courts) and Volksgerichtshof (special people’s court) outside the constitutional framework. The objectives of these totalitarian courts were to destroy internal opposition to Adolf Hitler’s mission in dominating and establishing absolute control over German state, government, culture and society. The legal systems were destroyed and reconstructed to support in the making of the Third Reich. The more special courts were established and given arbitrary powers to intimidate general public, execute and imprison the political opposition to Nazis. From 1933 to 1945, within 12 years, twelve thousand Germans were executed and more than sixty six hundred thousand Germans were put into prison. These are manipulated and reduced official figures but the realities were far worse.

During the Nazi period, the number of crimes declined, number of special courts increased and prison population increased in Germany. These contradictions within the Nazi legal system revealed its political objectives and judicial compliance with the Nazi regime. These courts were working as legal and institutional deterrence against opposition to the Nazis. The trials were held in the forms of publicity stunts in public halls and in city squares to inflict psychological fear among the masses. The sole goal of the Sondergerichte and the Volksgerichtshof was to perpetrate legal terror in defence of the Third Reich. The legal institutions were used for the Nazi propaganda and censorships. It controlled art, architecture, literature, music, cinema, research, teaching, journalism and mass media.   These special courts have eliminated civil liberties in Germany in the name of patriotism and nationalism. And justice disappeared in Germany.

The Supreme Court of India was established on 26th January, 1950 to deliver independent and impartial justice by following both niti and nyaya as envisioned in the Indian Constitution. The first few decades of its establishment, most of Indians have witnessed and trusted the impeccable and impartial nature of judgements from the highest court of the country. However, in recent times, there is a pattern emerging in the recent judgements of the Supreme Court, which questions its own foundational principles, missions and visions. The public display of political allegiance by some of the retired and current judges of the courts in India reduces its judicial legitimacy in legal praxis. Its verdicts resonate with the legal and political culture of the Sondergerichte and the Volksgerichtshof in Germany.

Like Nazis, the reactionary Hindutva forces swept away many of the freedoms in the name of nationalism, it is the duty of the Supreme Court to ensure and protect citizenship rights and individual freedom of speech and expression as enshrined in the Constitution of India. It is not malicious to criticise the governments and courts in a democratic country.  It is not the tweets of lawyer Prashant Bhushan that threatens the “very foundation of constitutional democracy” in India. It is the dubious silence and complicit of the judges that destroys judicial impartiality and independence of the Supreme Court of India. The Supreme Court’s silence on human rights violation, marginalisation of civil liberties in Kashmir and diminishing citizenship rights of the Dalits, tribals, workers and religious minorities weaken the moral foundations of judiciary in India. There is a pattern growing today in India, where professors, doctors, student and youth activists and human rights activists are suffering in prison, violent cow vigilantes, rioters and other criminals are roaming free with political patronage. Such a culture of justice empowers crime and criminals in India. If the majoritarian conscience determined by ruling class becomes the foundation of justice, then justice is doomed in India.

The legitimacy and authority of the Supreme Court of India should not be based on spreading the fear of justice but the love to deliver and ensure justice by following the letter and spirit of both niti and nyaya as enshrined in the Constitution of India. The ideas of dissent and freedom are inalienable rights in a liberal democracy; sustained by the culture of criticisms. The monopoly of justice by judiciary and dominance of power by the government of the day destroys the very foundation of justice, freedom and democracy. It erodes public faith in different institutions in the country. The culture of criticism sharpens democratic and judicial values. It is imperative for a democratic and constitutional court to promote the culture of criticisms for its own survival and growth. The attempt to throttle the culture of criticism is pushing India with a medieval mindset, which is a leap backward. It is dangerous for the future of India and Indians.

It is time for the courts and leaders of the governing party to look at history as their sole witness. The absolute power erodes quickly without any doubt. It is better to be conscious than be sorry. Justice survives in the moral canvas of struggles in history and all illiberal forces die their natural death in the dustbins of history. It may nor may not be televised but the fall of power is inevitable. In spite of all legal support, political, economic and military power, all young people did not participate in the ‘Hitler Youth’ movement in Germany. The working-class youth organised under the ‘Edelweiss Pirate’s (Edelweißpiraten), the students organised under the ‘White Rose’ group (die Weiße Rose) and the middle-class youths organised under the ‘Swing Youth and ‘Jazz Youth groups who rejected Nazi values and fought against Nazi regime and its legal infrastructures. The students. Youths, socialists and communists have played a major role in defeating Nazi rule and re-establishing liberal, social, secular and multicultural democracy in Germany today.  It is within this context, it is the historic responsibility of Indian students and youths to fight and defeat Hindutva Nazis and save India and Indians from the ruinous path.

Bhabani Shankar Nayak, Coventry University, UK


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