Our Constitution is the judiciary’s special shield

In a democracy, the judiciary is the citizen’s trump card, her defence against injustice. Our constitutional courts have a record of living up to that expectation, by not just defending but occasionally also expanding our civil liberties—whether it was the Supreme Court judgement that upheld our right to privacy, guidelines against sexual harassment at work or the decriminalization of same-sex relationships. And so, to hear Chief Justice of India N.V. Ramana worry about forces keen to “run down” the judiciary’s independence is disquieting. The CJI spoke about the pressures our courts operate under: while the ruling party wants them to endorse its moves, the opposition wants judges to fight its political battles. But the judiciary, as Justice Ramana said in a speech, is accountable only to the Indian Constitution. Other judges of our apex court have expressed anxiety too, most recently of raucous criticism on social media of their rulings, with regulation of such loose talk proposed as a way to protect judicial dignity. All this reflects how fraught with discord our public life has become as we reach a stage where basic principles that sustain democracy appear to be up for questioning, even revision.

Though it is not unusual for politically sensitive disputes to land in court, India’s topmost judiciary has not always kept its decisions and approach to justice above reproach. Think of its awkward reliance on sealed submissions in the past. Or its delay in hearing the electoral bonds case, the pleas of girls in Karnataka shut out of class for wearing hijabs, or even the challenge to Article 370 being scrapped. Too many matters of constitutional import have been hanging fire. Not too long ago, its decision on a plea related to the Gyanvapi mosque case seemed to show amnesia over the Places of Worship Act that it had so firmly upheld in its 2019 Ayodhya ruling. Its recent censure of activist Teesta Setalvad while dismissing a Gujarat riots case was truly extraordinary, with several legal experts and former judges calling upon the apex court to clarify if that precedent meant justice seekers could find themselves in the dock instead. While the apex court’s attempts to defang our sedition law are commendable, lower courts continue to ignore its directions on “bail, not jail” as the default setting on unproven charges. In a scenario where tweets or other online posts can put under-trials behind bars, the judiciary must act as a firewall against unjust denials of freedom. Unfortunately, it’s been falling short.

The value of judicial processes insulated from noisy politics cannot be overstated. For common citizens ranged against the might of the powerful, be it vested interests or the state itself, the Constitution’s promise of justice is the last hope. The judiciary is a vital organ, one that is called upon to exercise reason, counter any abuse of power and bend the arc of civilization towards consensual values we all hold dear. Electoral mandates, for example, allow only for legislation that doesn’t violate our constitutional compact of nationhood, the supremacy of which is the Supreme Court’s job to uphold. Vigilance is vital, no matter which dispensation is in executive power. Justice Ramana’s words this weekend did not qualify as ‘newsy’ by any standard measure of newness, but Indian judges at every level should ponder them. The only way for our justice system to secure its stature and render critiques invalid is to adhere closely to our Constitution in both the spirit and letter of its rulings. This is not a test we can afford to fail as a country.