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It is open season for every wise and pretentious person to join the chorus bemoaning the crumbling of the “rule-based” global order but no one seems to be bothered by the unhampered march of our domestic rule-based disorder.  And, what should be most disquieting is that the higher judiciary is unwittingly lending its imprimatur to the incipient “ordered” disorder.

This, perhaps, an extreme judgment, but no other inference suggests itself after a Chief Justice of India-led bench propounded a jurisprudence of  “the other side”. The bench had before it a petition filed by some eminent people, seeking some kind of restraint on hate speeches by many chief ministers and officials. The three judges, in their wisdom, thought the petition was not “objective” and, what is more,  the petitioner was chided because, as the lordships put it, “you have not cited a single example from the other side.”

This logic will surely be baffling to any citizen. In a civilised society and a constitutionally-governed polity, there can be no “other side;” there is only the law and it is for the judiciary to say what the law is. The judge has a mandate to determine whether a public action by a public functionary is in conformity with the letter and spirit of the law, and that determination cannot possibly be predicated on whether the offending public authority/ functionary belongs to this or that “side.”  A court is an arbitration forum; it is not a debating society.

The cause of justice – and, constitutional order – will inevitably be ill-served if an equivalence is sought to be introduced between the all-powerful state and the citizen.

The judicial dharma is plain and uncomplicated: ensure an equilibrium in our collective and ordered life. That constitutional obligation has been lost sight of by more than one bench of the higher judiciary.  The result is that at the end of the day, we find the authoritarian juggernaut inching forward, almost stealthily.

Even if we maintain the fiction that judges have no political or ideological biases or belong neither to this “side” or “the other side,” they cannot possibly be oblivious to the fact that the Union Government and more than two-thirds of our state governments belong to one political  party. That means, the “state” is nothing more than a political coterie that has a “mandate” to use executive authority. And, even when such a mandated government uses this executive authority to aggressively pursue a partisan political agenda, its actions must necessarily pass the test of legality and constitutional validity. If that test is judged on a basis of ‘this side’ or ‘the other side’, the court runs the risk of reducing itself to a political court.

Perhaps such a self-inflicted infirmity has already eroded the apex court’s judicial iqbal. Newspapers report regularly how this or that authority or agency – from the Election Commission to the Enforcement Directorate down to district magistrates—is merrily ignoring judicial suggestions or expressions of disapproval. Judicial chastisement no longer seems to trouble anyone, it is like water off the executive duck’s back.

The other day, Justice Joymalya Bagchi was slapping the National Investigation Agency (NIA) on its wrist for invoking the Unlawful Activities (Prevention) Act in a case of violence in Murshidabad district in West Bengal. The good judge noted that not every public disturbance is a terror act. “Every emotional outburst cannot be packaged as a threat to economic security.” The rebuke is well-deserved; but the NIA is not going to allow itself to be fazed by a judicial frown. All agencies have, unwittingly, been empowered by judicial approval of the police concocting a “regime change” charge in the Umar Khalid case. The higher judiciary cannot possibly brush aside lightly the uncharitable thought that it has empowered the thanedar to kneecap anyone and everyone the “state” [ read the political bosses] deems a political nuisance. The balance has swung decisively against the citizen.

It would also appear that a kind of collective confusion is creeping upon the apex court. It is sometimes indistinguishable from the pulpit. Every day, judges are preaching, exhorting, deploring. The last few days’ headlines make interesting reading. “Political leaders, officials must foster fraternity: SC.” “SC slams unchecked freebies, questions ‘ appeasement’.” “Development not absolute; cannot trade health for growth: Supreme Court.” And, then, a chief justice is bemoaning, from the bench, “What is happening in this country?!

What is happening is disorder, legally sanctioned. Illegalities and unfairness pockmark our national landscape. The courts have rarely caused any grief to the ruling coterie and its amazing friends [no disrespect meant for Spidey.] Powerful crooks continue in their wayward ways, as if there is no institutional authority to throw the book at them. And, of course, the courts are only too pleased to countenance putting anyone behind bars when the “investigator” says what they are plotting is an act of “terror.”

Is it too late for the higher judiciary to re-claim its lost prestige.? There may be a lurking fear among the lordships that a wilful executive may just defy them, telling them to go and enforce this or that unfavourable judicial order. The judges, admittedly, have no tank divisions at their disposal; what they do have is a deep reservoir of moral capital that comes with their constitutional position and assigned role. The court can retrieve its voice and efficacy only if it is willing to get out of the “other side” jurisprudence. 

Harish Khare is a former editor-in-chief of The Tribune.

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