The rape of a 23-year old physiotherapist, at 9:30 pm, in a Delhi public transport bus, on a busy route, on a busy day, in spite of the presence of an accompanying male friend, spotlights the shocking magnitude of the failure of India’s law and order situation. But even as we take to the streets with candles and placards, and even as the country’s most powerful figures angrily write letters and seek the imposition of fast-tracked capital punishment, the extent and frequency of the crime begs two very important questions: What took us so long to demand concerted action when such incidents have littered national headlines so many times over the past two decades? And by writing to authorities or demanding capital punishment, why are our elected representatives demanding action from others, instead of spearheading it themselves?

It takes a lot to stir our collective conscience. We are not easily moved – we are so busy living aspirational lives that we are too spent to worry about such mundane things as rapes, that occur according to one estimate, every 22 minutes in India. What’s more, this undying spirit, this unquenchable thirst and need to get on with our lives no matter the odds is a celebrated feature of the ‘New India’ we supposedly inhabit. We have all been representatives, at different times, of the spirit of Mumbai and of Delhi and Kolkata and Bangalore and Jaipur. So when we step out en masse to protest spontaneously, the brutal rape of a 23 year old, we must be really shocked. How else do we explain taking time out from our very busy schedules, to do something that is more than just an outraged Facebook post? Yet, we are all equally culpable in the crime we want punished.

As citizens, we failed our duty to demand change when a sixteen year old girl was raped in Haryana in September this year, allegedly by as many eleven men in unrelated incidents, three separate times, as she tried to escape one set of rapists after another; or when ASI Ravinder Pal Singh died protecting his daughter against an eve-teaser; or when in October alone, Haryana recorded 19 rapes, almost every other day between October 4 and October 30; or for each of the 909 cases of rape reported so far in Delhi and Haryana this year; or when a staggering 22,172 women were allegedly raped all over India in 2011; or when at least 2,13,585 women suffered gender-based crimes across the country in 2010; or when, in 2008, we recorded the third largest number of rape cases anywhere in the world. That these are reduced to mere statistics and that not one of these crimes stirred our conscience enough to demand action as we do now, contributed equally to the fate of the latest victim of our collective indolence.

In April this year, two undercover news reporters spoke to police officers in NCR – Delhi on the issue of the disconcertingly high number of rapes in the capital. In a shocking revelation, most officers revealed deep prejudices that calls into question their very continuance as law-enforcement officers. A majority of the officers suggested that family background, deals gone sour and provocative dressing, were the ‘real reasons’ for the rape. Some called into question whether such incidents were actually rapes – suggesting that in most instances, the victim desired some form of assault or at any rate, provoked it. One officer, mirroring comments made a few years ago by the Chief Minister, proposed a blanket curfew of 8 pm as an absolute time limit beyond which girls should not venture outdoors – so that women must remain indoors after hours, while potential rapists are free to roam the streets. As yet another report surfaced of the rape of a five-year old in Haryana, one must wonder which of these many reasons may have been responsible.

What these responses reveal however is an attitude that suggests that the offense of rape can be mitigated by proof of provocation. Worse, it places the subjective test of provocation on the whim of the accused, so that it becomes the prerogative of the victim to not provoke. Apart from highlighting its sheer inhumanity, these responses betray an attitude amongst the law-enforcement that its duty to protect is secondary to the victim’s duty “not to get raped” so that neither the rapist, nor the law-enforcement is to be blamed when a victim herself contributes to her rape by her choice of dress or her presence outdoors at particular times; an attitude which in other words seems to say, “this country is for rapists – save yourself if possible but don’t say we didn’t warn you.”

Equally guilty are our elected representatives. Their reactions following the incident does little to mask their collective failure. For years now, the people we elected have failed to rise above petty politics to enact tough new laws: on rape – despite a Supreme Court judgment suggesting changes in 1999 and a Law Commission Report setting out the nuts and bolts of how to achieve it, in 2000; on sexual harassment at the workplace – despite a Supreme Court directive following an equally shocking gang-rape of a social activist in Rajasthan in 1997; on stiffer penalties for assaults motivated by communal sentiments; and on the changes to the manner in which rape cases are investigated and the speed with which they are tried.

There is much that Parliament can do which goes beyond letter writing and capital punishment demands. (See this link for two informative posts on Law and Other Things by Mrinal Satish and Prateeksha Baxi) For instance, Bills to sharpen the anti-rape law and enact an anti sexual harassment law are still pending Parliamentary approval. A Human Rights Watch report in 2010 suggests that despite a Supreme Court finding of irrelevancy, the unscientific and degrading “two-finger test” to determine whether the victim was “habituated to sexual intercourse”, continues to remain standard forensic procedure across hospitals in India. And the findings of this test continue to aid defense lawyers in open court proceedings, adding to the humiliation of victims. Enacting laws to make this practice a punishable offense and providing for mandatory in camera proceedings for rape cases is another change Parliament can bring. Finally, there is an urgent need to usher police reforms to bring home that message that no matter the supposed instigation, howsoever provocative, there exists no right to rape and public spaces are not out of bounds for women, at any time of the day or night. As another victim of our collective failure succumbed, the responsibility to bring lasting change lies with us alone.

[The cover photograph is in the public domain and is sourced from the US National Archives and Records Administration]

Apparently when Devi Lal, the ‘tau’ of Indian politics, was asked why he had made his son, Om Prakash Chautala, the Chief Minister of Haryana on becoming the Deputy Prime Minister of India himself in 1989, he crudely responded  –‘aur kya, Bhajan Lal ke chhore ko banauu?’ That level of arrogance may not inform contemporary Indian politics but responses from a delegation of Indian MPs to a question on dynastic politics indicated that the tau’s ghost might linger for a while.

Responses from Supriya Sule (LS, NCP), Piyush Goyal (RS, BJP) and Deepender Hooda(LS, INC), who were part of a panel that also included Chandan Mitra (RS, BJP), Asaduddin Owaisi (LS, All India Majlis-E-Ittehadul Muslimeen), Jayant Chaudhary (LS, RLD) and Rajagopal Lagadapati (LS, INC), made it clear that solving the problem of entry barriers into Indian politics was far from being a priority. Their focus, as has very often been the case on this issue, was on justifying why positions of privilege do not prevent them from being sincere and hardworking MPs. The democratic deficit caused by the entry barriers hardly found any mention in the responses. Supriya Sule’s passionate declaration of the personal sacrifices she was making, Piyush Goyal’s treatment of his political lineage as an advantage and Deepender Hooda’s assertion that election victories (after the first one) were all about individual merit reeked of a power elite determined to hold on to its position of political privilege. Perhaps the question stood no chance given that it was being put to a panel where 6 out of 7 speakers were inheriting the political legacies of their families.

The panelists seemed more willing to introspect when posed a question on the institutional reforms needed to make Parliament functional again. They acknowledged problems with the system, and stated that attempts were being made to forge solutions across party lines. Details however were scant, apart from the mention of a proposal to introduce an annual minimum of parliamentary sittings. Chandan Mitra was of the view that, contrary to public perception, Parliament achieved significant results through consensus in its standing committees.

Given the history of the Third Front in Indian politics, it was surprising to see the degree of optimism amongst non-Congress/BJP panellists about the possibility of such a government in 2014. Perhaps the most enduring account of the problems surrounding the formation of a Third Front government is Devi Lal’s insistence on taking the oath as Deputy Prime Ministerin 1989 despite President Venkataraman’s strong suggestion during the ceremony that the Constitution permitted him to take oath only as a Minister (And well, it took a decision of the Supreme Court to finally resolve the issue). Supriya Sule’s answer, if implemented, might well be a way to counter such deep levels of suspicion and discord – she emphasised the necessity of presenting a pre-poll Common Minimum Programme to the electorate, rather than cobbling together a post-poll alliance. If voted to power, Asaduddin Owaisi was of the view that the economic and foreign policies of a Third Front government would be substantially different from the largely indistinguishable policies of the two national parties. However, Piyush Goyal believed that a government dominated by regional parties might be ill-suited to address national issues. In a polity that is increasingly dominated by regional parties, Deepender Hooda acknowledged the need to address regional aspirations and strengthen leadership in the States.

The responses to a question on whether identity politics impeded or enabled democracy were predictable. Chandan Mitra promptly held up the examples of Nitish Kumar and Narendra Modi and their brand of politics as moving away from the fixation with identity. Rebutting the mainstream discourse about Nitish Kumar’s development agenda, Asaduddin Owaisi claimed that the Bihar Chief Minister had merely got his religion and caste permutations right by carving out Maha-Dalits and Most Backward Classes from the Scheduled Castes and OBC categories respectively. While the jury might still be out on the political feasibility of Nitish Kumar’s strategy in other parts of the country, it certainly represents the next level of legal challenges for reservation policies. While courts have been willing to uphold the sub-classification of OBCs along economic lines, the constitutional fate of Nitish Kumar’s reservation policies for Scheduled Castes remains uncertain, especially in light of the Supreme Court’s decision in EV Chinnaiah v State of AP & Ors.

Being rather dismissive of Narendra Modi’s model of development, Asaduddin Owaisi asserted that it was too high a price to pay. He delivered an impassioned justification for identity politics, especially in the context of safeguarding minority rights. The reactions from Mr. Owaisi and other Muslim MPs to the Supreme Court’s observations on the Haj subsidy have been interesting. Neatly capturing the benefits of identity politics, he concluded his remarks with a poetical flourish- ‘phool nahin toh phool ki patti hi sahi’ [if we can’t have the flower, then we may as well have the petals].

If one were to attempt to roughly label the responses, arrogance, predictability, lack of nuance and evasiveness would be good candidates, typical of so much of Indian political discourse. While some of the responses to questions on climate change, reservations based on economic criteria, and the Gujarat riots betrayed the latter two characteristics, other answers on the same issues were certainly more measured and reasoned. When asked whether India could afford not to transition immediately to a low-carbon economy, Piyush Goyal attempted to portray India as the victim in global negotiations and seemed to suggest that development and environmental protection were antithetical. In contrast, Mr Chaudhary remarked that this distinction was counter-productive, and that moves to adopt low-carbon measures ought not to be viewed as a conspiracy of the developed world. Instead, it was in India’s self-interest to move towards sustainable growth particularly in the light of our vulnerability to the effects of climate change.

Supriya Sule also displayed a lack of nuance when she cited the Right to Education Act as an example of affirmative action based on economic criteria without any reference whatsoever to the manner in which various State governments had, under their respective rules, divided up the 25% quota.

This lack of nuance is particularly ironic given that politicians are quick to accuse civil society of failing to appreciate the complexity of political challenges, the India Against Corruption movement being a case in point (Chandan Mitra couldn’t resist a self-congratulatory pat on the back as he reminded the audience of the high quality of parliamentary debate on the Lokpal bill).

The BJP’s defensiveness over Narendra Modi is evident in its reaction to the report submitted by the Supreme Court appointed amicus, Raju Ramachandran, on the Zakia Jafri case. It was also evident when, on being asked whether there would be adverse political consequences if Narendra Modi apologised for his moral culpability (rather than legal) for the Gujarat riots, Chandan Mitra’s initial reaction was a refusal to answer the question. It took him very little provocation to respond when Asaduddin Owaisi responded to a question on whether such an apology would suffice for the Muslim community. He said that Narendra Modi would never apologise because an apology for such an act required a ‘human heart.’ He asserted that all legal proceedings would have to continue, and indicated that a Truth and Reconciliation Commission based on the South African model might be acceptable. This response was sufficient for Chandan Mitra to spout the BJP line on Narendra Modi that there was no question of an apology, since no legal culpability had been established.

The session was a unique opportunity to interact with parliamentarians from across the political spectrum and although several trite responses were duly parroted, there were some well-articulated positions along with encouraging passion for convictions. It gave us a taste of what makes Indian politics exciting and frustrating at the same time.

Jay Panda, Restoring the House, The Indian Express, 6.12.11

Arghya Sengupta, Liability Rules Leave Very Little Recourse, The Hindu, 1.12.11

Huma Yusuf, In the Realm of Fear, The Dawn, 5.12.11

Bruce Riedel, A New Pakistan Policy, The New York Times, 14.10.11

In a country where most things, from the wearing of helmets by pillion riders on a motor-bike to the fare charged by the auto rickshaw-wallah are intensely political and politicised in nature, it is shocking that the supposed fount of India’s democratic politics, the Parliament, seems to be in permanent paralysis. Given this state of our nation, this political round-up focuses in equal measure on the politics of everyday life in India, the non-politics that characterises the nation state and on Pakistan, which, one hopes, can rediscover some hidden reserve of democratic politics and extricate itself from the morass it finds itself in currently.

No one captures the politics of everyday life in the new, shining India as well as Mihir Sharma in his fascinating expose of adman-cum-fixer-cum-bouncer-at-the-gates-of-the-who’s-who, Suhel Seth. The awesome power of networks, the cultivation of friends in high places, the veneer of providing celebrity branding and even the brash and impudent Agony Aunt columns every week make Seth who he is today. And unfortunately, as Sharma says, India what it is today.

*******

Today, India is in a political rut. As the parliamentary logjam continues into its second week, the inane spectacle of MPs trooping into Parliament only to scream at the top of their voices and troop out immediately thereafter, their day’s work having been done, continues to play like a broken record, day after day. One of the MPs, Jay Panda, argues in his piece, that what needs to be done, is to change the archaic rules based on which the Parliament functions. Persuasively argued Mr. Panda, but perhaps looking inwards into the hearts and minds of parliamentarians themselves, may be more useful.

*******

One of the crucial things Parliament should have done instead of log-jamming was to scrutinise the Civil Liability for Nuclear Damage Rules, 2011, brought out by the government last month. In an alarming sequel to the long drama of the Civil Liability for Nuclear Liability Act, which took place last year, the government has passed a set of rules that fly in the face of Parliament, India’s public policy and good sense. In this piece in the Hindu, I argue why these Rules are dangerous and deserves Parliament’s immediate attention.

*******

Finally, no round-up of India’s national politics is complete without a brief look at Pakistan, our troubled neighbour, when they have had such a momentous week. With the NATO strike killing 24 Pakistani soldiers, and President Obama’s long delay in offering condolences, though not an apology, NY Times columnist Bruce Riedel’s bold argument for a new and revised policy of containment to be followed by the USA in Pakistan seems to be in effect. Riedel argues, in a piece, that is certain to increase in relevance, that the USA must place its need to take out hostile terrorists over its desire to have friendly relations with what he considers to be a duplicitous Pakistani Army. But what about the effects on Pakistani society? Huma Yusuf in Dawn alerts us to the chilling nature of extremism in Pakistan, and how the NATO airstrikes are the latest excuse to rein in individual freedom in Pakistan.

Indians wait and watch.

]]> http://www.criticaltwenties.in/nationalpolitics/politics-critical-digest-6th-december-2011/feed 0 http://www.criticaltwenties.in/lawthejudiciary/the-basic-structure-doctrine-an-insiders-view http://www.criticaltwenties.in/lawthejudiciary/the-basic-structure-doctrine-an-insiders-view#comments Thu, 27 Oct 2011 12:45:50 +0000 Alok http://www.criticaltwenties.in/?p=3870 (This is a book review of TR Andhyarujina’s recently released book “The Kesavananda Bharati Case: the Untold Story of Struggle for Supremacy by Supreme Court and Parliament”, published by Universal Law Publishing)

Prof Dr. B Errabi, a fine Constitutional law professor, and an honest and thorough academic if there was ever one, startled us with a confession in the middle of one of our Constitutional Law classes – he had not actually read the Kesavananda Bharati judgment in its entirety. It wasn’t accompanied by gasps of disbeliefs in my class as much as sighs of relief as we knew that now we wouldn’t be expected to read every last word of the 1000 and more pages, two columned, miniscule font-sized monstrosity of a judgment.

It would be hard to beat that confession out of most people who confidently mouth platitudes to the basic structure doctrine these days, but it is a pity that the most important case in the history of modern India is virtually inaccessible to all but the most dogged and patient of researchers. That, however, should not take away from efforts to grapple with the impact and consequences of that judgment (some of which we are still only now understanding) or the circumstances and events that led to it.

The locus classicus on this issue, by far, is Granville Austin’s “Working a Democratic Constitution: The History of the Indian Experience” and the trajectory of events described in the book, and the picture of the judiciary-Indira Gandhi conflict drawn by him continues to dominate our understanding of the case. Barring some hitherto unforeseen revelations, Austin’s narrative continues to hold the field and Andhyarujina’s book adds interesting details to this picture to provide us better perspective on the case.

As set out by Andhyarujina himself, the effort here is to show the extra-ordinary and sometimes, frankly bizarre circumstances under which this case was argued. Whether it was the seemingly trivial, school-boyish “fight” between HM Seervai and Niren De on who gets to open the Respondents’ case or the open sniping between the 13 judges on the Bench during the hearings (as though they were 13 scorpions in a bottle), we get a glimpse of the far-less-than-savoury doings and dealings that went on behind the scenes in this case. Most crucially, some pieces of the jigsaw puzzle fall into place regarding the controversial “View of the Majority” and we get some sense of Chief Justice Sikri’s attempt to gerrymander a majority in this case out of the 11 judgments delivered. For this, Andhyarujina’s book must be necessarily commended.

Such narratives put judgments in their proper perspective as not just markers in the development of constitutional law in the country, but also the fossil record that helps us understand the socio-political climate of the nation. The Kesavananda case was argued with definite political overtones hinting at the larger conflict over the wisdom and effectiveness of Government’s policies of the day. Much as we would like to believe otherwise, the book also lays bare each individual judge’s own political leanings deeply impacting the way the judiciary approached the issue of property rights under the Constitution.

In some respects, this also helps us appreciate why the judiciary is so powerful today. Quite apart from the vacuum in political decision making and an indecisive Executive, it cannot be missed that on the larger questions of political economy, the major political players (with the exception of the Communist parties who’ve become even more fringe political players) are almost ad idem on most issues. The difference between the major political formations on the issues of the day is one of degree and not of any genuine distinction. Dissension on these issues lies at the fringes and not at the core of our political system. Likewise, the utterly divisive issues are no longer national in nature – Telangana for instance. The absence of deeply divisive issues and a fragmented polity means that the judiciary no longer finds itself in a situation where it has to constantly fend off attacks to its own institutional integrity from other institutions. The two collegium decisions are good illustrations of the strong defences the judiciary has put up post-Kesavananda against Executive and Legislative interference, helped in no small part by the a wavering and weak Executive. The manner in which some of the judges who decided the Kesavananda case were appointed (as described in Gadbois’ book) and how this reflected in not just the judgments delivered, but also the sharp exchanges and the prejudices that they carried to the Bench (as illustrated by Andhyarujina), not to mention the subsequent supersessions, all give us some perspective on the whys of the Second Judges and Third Judges cases as well.

Yet, that is only one half of the book.

The other half is a critique of the basic structure doctrine itself. Here the book seems somewhat shallow and its analysis, incomplete. The essential premise is a grudging acceptance of the fact that while the Basic Structure doctrine maybe functionally necessary, it is not conceptually and theoretically sound enough to be capable of proper application – akin to the argument Seervai makes in the third and fourth editions of his book. While this fits in with the fine tradition of Indian scholarship of a sishya paying homage to his guru (Andhyarujina worked as Seervai’s junior in this case) the approach is not sufficiently critical enough and does not get to the academic underpinnings of the basic structure principle itself, for instance, the works of Carl Schmitt and Conrad Dieter.

The underlying premise of the criticism of the Seervai school of thought (which is also espoused by a minority of the judges in the Kesavananda case) is that the power of Parliament to exercise its constituent power is unlimited. This is based on the belief that Parliament reflects the will of the people and the power of the people is unlimited. Carl Schmitt challenges this belief and separates constituent power, i.e., the power to actually create and destroy Constitutions, from the ordinary legislative power of the Parliament. This distinction is essential as without it, the Constitution ceases to have any identity as a document of its own, and merely becomes the instrument of the party or the persons in power at any given moment. The consequence of this, as Schmitt himself puts it, is that a person when taking the oath to defend the Constitution is merely taking an oath to defend the power of amendment that is wielded by a body; a concept that reduces Constitutionalism to a nullity and places absolute power in the hands of an elected body with no fetters. (It is a different matter that Schmitt, perhaps of out of fear or cowardice, made a 180 degree turn on this aspect when the Nazis took over in Germany and went on to become their chief legal theorist and apologist.)

The idea that Parliament has no fetters apart from those expressly placed upon it by the Constitution is now losing traction as a fundamental principle of Indian Constitutional law. Justice Reddy’s judgment in GVK Industries is only the latest of a long line of judgments which first questioned and then slowly but surely undermined the idea of an all-powerful Parliament. Rather, what seemed like utter heresy to the judges of the Kesavananda Bench, i.e., Parliament is a creature of the Constitution and draws its powers (and not just the limitations on its powers alone) solely from the Constitution is now practically dogma. When viewed from this perspective, the basic structure doctrine seems far more obvious and less of a judicial chimera. It is true that its proper scope and extent need to be clarified and outlined, but that exercise rests only at the penumbra of the doctrine itself and not at its very core as Seervai, and by extension, Andhyarujina make it out to be.

Andhyarujina also questions the basic structure doctrine on the basis of its inherent vagueness and incoherence in some of its concepts, as also the disinclination of constitutional courts in Pakistan, Sri Lanka and Malaysia to apply the same in the context of their country. The first objection, I think, is somewhat specious as the Constitution itself is littered with vague phrases (“life”, “liberty”, “equal”, “freedom”, “expression” to take a few examples from Part III alone) but that has not prevented the growth and development of a rich jurisprudence of human rights in this country vesting these words with meaning. The fact remains that it is a fundamental attribute of language that meaning is not absolutely fixed for all time to come and vagueness at the penumbra should not be a reason to discard a concept that in its essence and core, is capable of being articulated.

As far as the “rejection” of the basic structure doctrine goes, in the examples given, perhaps only the Malaysian Supreme Court has categorically denied the existence of the basic structure in its Constitution. The position of the Pakistan Supreme Court is less clear (a sort of Schrodinger Cat like situation where the basic structure doctrine seems to be prevalent and not prevalent at the same time), while the Sri Lankan Supreme Court has rejected it on the basis that the amending power given to the Parliament in Sri Lanka is much wider. South Asian Constitutional courts having been the most active in “cross-constitutional borrowing” of concepts and ideas such as Public Interest Litigation, we may not have heard the last word on this either. The Bangladesh Supreme Court on the other hand, in Anwar Hussain Chowdhary v Bangladesh (1989 BLD (Supp) 1), has expressly approved and applied Kesavananda.

Admittedly, the shallow critique of the basic structure doctrine is not the focus of the work, and does not, in any way, take away from its importance in helping place the Kesavananda case in its proper perspective. At a time when, unlike their predecessors, Seervai and Palkhivala, senior counsel of the day have neither the time nor the inclination (and some would unkindly say, the intelligence) to engage with academia and theory of the law, Andhyarujina’s book is to be welcomed and a must read for any scholars of law interested in understanding the historical and political circumstances in which the Kesavananda case was heard and decided.

At a time when it has become the norm in civil society, large sections of the media and the judiciary to criticise Parliament and politicians, it was refreshing to see Parliament serve a strong reminder to the nation as to what it is capable of. The impeachment motion against Justice Soumitra Sen of the Calcutta High Court had all the makings of a dramatic spectacle— the dramatis personae- a judge accused of corruption being brought to ‘the bar’ of the Rajya Sabha for the first time in its history, the legislators determined to mete out justice, amongst them several legal eagles with sharp minds and sharper oratory; the setting- the hallowed halls of Parliament, the cornerstone of Indian democracy, the context- in the midst of unprecedented popular protests against corruption in governance, challenging the legitimacy of Parliament itself.

In such heady and tumultuous circumstances, witnessing the equanimity with which the MPs of the Rajya Sabha conducted themselves during the impeachment proceedings was heartening. There was no playing to the galleries, no hyperbole, little superfluity- instead, the speeches arguing both for and against the impeachment were measured, the scrutiny of the legal points, rigorous, the assessment of the Justice’s character, balanced, the reactions to his impassioned plea of innocence, honest, and the humour, refreshing. At its very root, the debate was essentially human—a coming together of divergent points of view that sounded very much like what the average Indian on the street would have said regarding the consequences that ought to be faced by a judge of a High Court who had been accused and twice found guilty of corruption.

This was especially creditable given the setting and the circumstances. To be sure, there was nothing ordinary about a judge being brought into Parliament, eloquently and passionately pleading his innocence, claiming he was being made a sacrificial lamb to protect a higher judiciary that was rotten at the core. In fact with allegations flowing thick and fast against a former Chief Justice and other judges, Parliament would have been very much out of its comfort zone, in the awkward and unfamiliar position of having to form an opinion and pass judgment on the higher judiciary, an institution, that has of late, assumed a halo of immunity. Equally there was nothing ordinary about the protests a few kilometres away outside Tihar Jail, where one man had captured the popular imagination by challenging the supremacy of Parliament itself. Parliament could scarcely have risen to the occasion better and served a more fitting riposte to its detractors than by discharging its constitutional obligation of impeachment wisely and responsibly, in a manner that would have made both the drafters of the Constitution, and the people of India proud.

When one returns from a long break from work, one is tempted to take it easy, switch gears slowly, and settle into a rhythm in due course.

Except if you’re a judge of the Supreme Court.

In which case, you charge right back into the front pages of every newspaper with hard hitting judgments and wide ranging orders.

To recapitulate, just this week:

Special Investigation Team set up to probe black money stashed abroad

Chattisgarh Government directed to disband the Special Police Officers (better known as the Salwa Judum)

Allahabad High Court’s quashing of Land Acquisition by Greater Noida Industrial Development Authority upheld

Monitoring of Investigation into Cash for Votes Scam

Whew. This is what an activist Court looks like folks. The Court is telling the Government how to do its job, whether it is in “getting” black money back, or how to fight the Naxalite/Maoist problem, or how it should acquire land for “public purposes” under the Land Acquisition Act.

It is of course a different matter whether or not this is a good thing.

The issue of judicial activism has been done to death here and elsewhere and the arguments, after a point of time, are just the same old re-treads – competence v enforceability of rights; institutional integrity v immediate need; so on and so forth.

The situation that the Supreme Court, and India, in general, finds itself in, however, cannot be easily bracketed within any of the existing parameters of the debate. Rather, what is propelling the Supreme Court’s activist drive (and to a great extent, other High Courts such as the Karnataka High Court and the Delhi High Court, as well) is the impression of a severe case of governmental paralysis that has gripped our polity.

There is no dispute that severe problems currently buffet the Indian State from all sides and in all sorts of ways, but there seems to be no will on the part of the political executive at the Centre to take any action to steady the ship.

Whether it is corruption, black money, Telangana, unjust land acquisition, depletion of forest cover, you-name-it-we-face-it, the Government’s reaction seems to be to run around in circles like headless chicken. In some cases, they know what to do, but won’t do it for lack of political will. In others, they know what to do, but go ahead doing the exact opposite for short term political/economic gains. In others, they have not the first clue on what to do.

So far, the Supreme Court has stepped in to remedy the situation in two of the three types of cases I just pointed out. The black money case is a classic instance of where the Government just does not have the political will to seriously pursue the persons fronting for the illegally obtained wealth stashed abroad. As Justice Reddy’s reasoned order makes it clear, far more effort was spent in convincing the Court that nothing could be done or something was being done, than actually going out and doing this things to prosecute individuals with suspicious foreign bank accounts. It is no wonder that Justice Reddy, among the more soft spoken and temperate judges of the Supreme Court, should have completely lost his rag during some of the black money case hearings.

With land acquisition, we have the Court finally stepping in to call the Government’s bluff about “public purpose”. This was a particularly egregious case where the Greater Noida Industrial Development Authority invoked the “emergency” clause of the Land Acquisition Act to deny farmers a hearing before acquiring land to be handed over to private developers to build luxury apartments. This is not a first for the UP Government mind you, but one could say that this is so obviously and blatantly stealing from the poor to give to the rich that the Court had to put its foot down. It is ironic, but exactly the same fears were voiced by Justice VD Tulzapurkar in his minority judgment as far back as 1985 in Bhimsinghji v Union of India (in the context of the Land Ceiling legislation).

The enactments involving large schemes of social engineering like abolition of Zamindars, agrarian reforms nationalisation of undertakings and businesses and the like, where avowedly the benefit of the community or public at large is the sole consideration are distinguishable from the instant case, where “industry” has been expressly defined to include business, trade or profession in private sector and where power has been coffered upon the State Government to allot properties acquired under the enactment to individual businessman, trader or professional to enable him to carry on his private business, trade or profession, that is to say, where the legislation is a fraud on State’s power of eminent domain, such a provision of putting a maximum limit on compensation payable in respect of the acquired property irrespective of its extent will have to be regarded as confiscatory in nature.

Then, the majority — comprising CJ YVChandrachud, and Justices MN Bhagwati, V Krishna Iyer, and AP Sen — brushed aside such fears as being everything short of hallucinatory, but now, in retrospect, the views of India’s finest judges of all time seem, frankly, deluded.

The current wave of activism among the judges is at least a year old and can probably be traced to the time when Justice Kapadia took over as the Chief Justice of India fifteen months back. His now-tainted predecessor monopolized fresh PILs that challenged Government power or inaction and let them languish in the doldrums of delay. In his last year as the CJI, it was an open secret that this was being done to get a favourable post-judicial posting — to pick a body at random, the National Human Rights Commission — along with the perks and power that go along with it.

Justice Kapadia, is however, cut from different cloth and has brought a strict, no-nonsense approach to the business of manning the sentinel on the quie vie. PILs were spread among the various Benches that he constituted, ensuring that such matters go before judges who have an impeccable record of honesty. So far, he hasn’t been let down as the Supreme Court’s monitoring of various issues, be it the implementation of the NREGA, the right to food and shelter, corruption in high places or the rights of tribals has attracted much appreciation and very little opprobrium.

Ideally, the site for the resolution of such complex and intractable problems should be the halls of Parliament or the domain of the Executive. Ideally, the manner in which such problems should involve careful deliberation, balancing as many interests as possible, and without compromising the interests of the worst off. Ideally, the results of governmental action should inspire confidence in the public at large that their democratically elected government is capable of solving the intractable problems of the day. Yet, as we see everyday, the situation is not even close to being far from ideal.

Contrary to academic and popular belief, judges are aware of their limitations and their lack of power. Overreach makes the judges and judiciary look silly, and sixty odd years of judicial history has ingrained this much at least into judges. Writ courts can only monitor, but not investigate. They can only call for reports, but cannot compel compliance. They can strike down egregious actions of State, but cannot fully restore those irretrievably wounded by such actions to full health, in body or mind. Much of what is said by judges during argument, by way of observation, — and often (mis-reported) by the media — is a tacit admission of this powerful powerlessness. Oxymoronic perhaps, but that is the only way to describe a judicial body that has the power to lay down the law of the land, protect fundamental rights against governmental encroachment and do complete justice, but cannot always ensure that its orders are not casually disobeyed by lower level officials.

Let’s be very clear about this. India’s democracy is by no means safe, secure or stable. It is being constantly subverted and undermined in a hundred different ways every day. Yet, every day, someone fights back against this subversion and undermining knowing that failure would bring the institutions of democracy down to dust. Democracy is not just a formal commitment to periodic elections based on universal suffrage, but something bigger and more meaningful, and most importantly, something worth defending.

The battles that the present activist Supreme Court has picked up go to the very heart of such a rich conception of democracy;
How should a democratic state fight to protect democracy without subverting it? What’s is the role of the State in ensuring that economic growth is equitably distributed? How to ensure that the political process is not subverted by illegally accumulated wealth?

As Justice Reddy puts it so eloquently, these are fundamental, existential questions that have to be grappled with and cannot be wished away or put into a SEP-field. Among the major organs of the State, only the judiciary seems to understand that this is what is at stake, and why it has do something to prevent utter and complete breakdown of the institutions of democratic governance.

Maybe, if things improve, we won’t need a Supreme Court that has to keep an eagle eye on governing institutions. Maybe, it will go back to resolving intractable family disputes and gigantic corporate battles and when certain families are involved, do both at the same time. Maybe, the case load of the judges will leave them worrying less about what public interest compels them to do, and more about what the precedents and principles have to say about it.

Maybe.

For now, though, the sentinel’s strong, stentorian “qui vive” is comforting.

So what does it take to be a successful Indian politician? Three key qualities are absolutely essential—mass appeal, the ability to handle pressure and be able to connect with a wide range of people across social strata. Top-level national cricketers have all these qualities in abundance:

Mass Appeal:

Most national cricketers who have played for any length of time would command a respectable mass appeal. Perhaps they may not all be unanimously revered like Sachin Tendulkar, but it would be fair to assume that service to Indian cricket is a pretty safe way to work one’s way into the public consciousness.  That’s an election result neatly in the bag.

See how just one knock of 87 got this dude a whole generation of fans. Had he been wiser he would not have continued playing for Uttar Pradesh in dusty hinterland cricket grounds but could have been sashaying down the corridors of power in the country, something of course he can’t do with much regularity on a cricket pitch:

http://www.youtube.com/watch?v=-0_m_v-omnM

Ability to handle pressure

For an Indian cricketer, it’s all about the pressure. Whether home or away, with a massive contingent of fans loudly and raucously cheering him on, and millions more glued to their television sets, nerves are bound to jangle. Almost every moment is a make-or-break one. Hit and you’re famous; miss and you’re a goner.

Sample this for pressure: A tail-ender coming out to bat against Pakistan in Karachi, it doesn’t get bigger than this:

http://www.youtube.com/watch?v=P24X6cZbHmg

If after this, as a politician, your constituents want you to build a road, three contractors are falling head over heels to get the contract to build the road and your party does not want you to build the road but instead focus on enriching the party coffers, surely the pressure seems minuscule in comparison?

The Connect:

For a politician, unless you’re smart and in the Rajya Sabha like many of our current cabinet ministers are, it’s all about connecting with people. Especially in this modern day and age, it’s imperative for most politicians to connect with the farmer, the grocer as well as the tycoon and public relations manager. And cricketers already have a headstart in this process: because if there’s one thing that connects Indians better than State Bank of India proclaims to do , it’s cricketers.

Sachin Tendulkar

I have little doubt that cricketers can fit into politics more seamlessly than most others. Given this, I’m surprised most former Indian cricketers end up either doing bad commentary, attempt to coach teams, or just retire into oblivion. Come on guys, you’ve served the nation handsomely as cricketers, and here’s another golden opportunity to put on the whites again. The white kurta-pyajama for Parliament this time!

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