Black Sheep In Judiciary Is Increasing; Courts At All Levels Moving Towards Majoritarianism: Justice Deepak Gupta Writes

The Article was first published in The Tribune.

After the marching has come to a halt, the drumrolls have fallen silent and the euphoria of India's 80th Independence Day celebrations has lessened, I ponder, how free are we, the citizens of India?

Independence is not mere removal of the foreign yoke. We are an independent nation when the citizens have the freedom to think and speak without fear. We are independent when citizens can raise the voice of dissent and openly express their views. We can decide the future of a child, whether it be in the fields of education, healthcare or basic human rights. We are a country truly independent when there is no caste or religious bias and equal opportunity is not denied to citizens on account of their belonging to the depressed classes or minorities. We can be truly independent only when we get rid of corruption, bias, bigotry and intolerance.

Looking back, one is proud that we have progressed a lot. Citizens are living a better life than before. India's economy is in better shape than that of many other countries. Life expectancy has improved considerably. We are a global power heading towards a trillion-dollar economy. But what use is a trillion-dollar economy if a large proportion of the citizenry still lives below the poverty line?

In a short article, I cannot cover all aspects. Having spent almost half a century in the legal profession, I am concentrating on the legal fraternity.

No country can claim to be independent unless it has an independent and fearless judiciary. That can be achieved only when we have judges with integrity, intellect and, above all, a spine. The strength to stand up for justice, the courage to fight against injustice. Judges who can be true to their oath to act “... without fear or favour ...”

The constitutional courts, i.e. the Supreme Court and High Courts, are not only arbiters of disputes but are also supposed to protect and uphold the fundamental rights of citizens. Our founding fathers gave so much importance to fundamental rights that the right to approach the highest court of the land to complain of breach of such rights is itself a fundamental right under Article 32. Sadly, in the last few years, constitutional courts have not shown the requisite sensitivity or strength.

Justice H.R. Khanna, in his courageous dissent in the ADM Jabalpur case, had said that even during an Emergency, a citizen could not be deprived of fundamental rights except in accordance with the procedure prescribed by law.

“Bail, not jail, is the rule” is the oft-quoted legal principle. In actual practice, however, it is jail, not bail, which has become the rule. It is shocking that in a country where we swear by the rule of law and a person is presumed innocent until proven guilty, there are three undertrials for every convict.

Umar Khalid has been behind bars for more than six years and the trial has not even started. What about his right to liberty? What about his right to speedy trial? The Supreme Court, in a later decision, has itself questioned the validity of the judgment in Khalid's case.

The process has become the punishment. People are condemned and their lives ruined by labelling them as anti-nationals. Unfortunately, courts do not protect the fundamental rights of these citizens.

Sonam Wangchuk was detained for about six months. Any student of law knows that a petition of habeas corpus must be decided at the earliest. In this case, the Supreme Court kept adjourning it, with a request to the government to have a relook into the matter. Finally, when the powers that be realised that the Court was unlikely to decide the matter in their favour, the order of detention was withdrawn. Surprisingly, the Court then said that the matter had become infructuous. The Court should have decided whether Wangchuk's detention was legal.

Democracy is the rule of the majority, but majoritarianism, where the voice of the other side is not heard, is anathema to democracy. Unfortunately, courts at all levels are moving towards majoritarianism.

In the Ram Janmabhoomi case, the apex court held that no other disputes concerning places of worship would be entertained or reopened. The judge who ostensibly authored this judgment later upheld in the Gyanvapi mosque case the order directing the ASI to ascertain whether a temple existed on the site where a mosque now stands. This was done on the specious ground that it was only an inquiry and not a decision on the matter. This order has opened the floodgates of litigation, which will impact the fraternity among communities and is, in my view, a decision taken to appease the majority.

When members of a particular community consumed chicken in a boat on the Ganga, they were denied bail for months. However, when members of the majority community consumed liquor on the same sacred river, they were granted bail within hours.

In the past few months, there have been a number of appointments to the Supreme Court. Some Chief Justices of High Courts have also been appointed. Almost all, if not all, belong to the upper castes. A majority are Brahmins. It is not as if there is a lack of talent among other communities and religions. Among the top 50 High Court judges in the country, there are many, some very high up in seniority, belonging to other religions and communities. They are men and women of impeccable integrity and capability. I am not casting aspersions on the persons appointed, but the Supreme Court, if it has to be the Supreme Court of the country, must have representation from all sections of society.

The root of the problem is the manner of appointment of judges to the High Courts and the Supreme Court. The collegium system has failed. It has become totally opaque. The collegium takes extremely important decisions without giving reasons.

Despite the heavy expense and long time taken to get disputes decided, the people of this country have reposed great faith and trust in the judiciary. Unfortunately, that trust and faith are waning. Judges are under the unrelenting scrutiny of social media. Despite all this, even today, most of the people repose more confidence in the judiciary compared to the legislature or the executive.

The Bar itself is no longer independent. There can be an independent judiciary only when there is an independent Bar.

Lawyers who can rise above their political affiliations, who can rise above their ethnicity, and who can fight for the citizens and stand up to power. Fees have skyrocketed but pro bono work has nosedived. I leave it to members of the Bar to introspect as to whether they are truly independent or not.

We have a Chairman of the Bar Council of India who threatens students who raise the voice of dissent. The main role of the Bar Councils is to take disciplinary action against erring lawyers and ensure that the quality of legal education is maintained at a high level. It has failed miserably on both counts. Barring a few, the level of education provided in law colleges is much below par. Virtually no action is taken against lawyers who flout legal ethics and demean the profession.

One of the most important of all human rights is the right to liberty, which is guaranteed to every citizen of India under Article 21 of the Constitution. This liberty is violated with impunity, and the courts in many cases have become mute spectators.

This is not the justice, the liberty, the equality, or the fraternity enshrined in the Preamble to our Constitution. This is not the freedom that our leaders fought for.

Dissent, the right to express one's views freely and without fear, is not only a fundamental right but also an essential part of democracy. Obviously, when there is a protest, there will be inconvenience to some members of the public. No protest can be effective if it does not cause inconvenience. Now we have judges making suggestions as to how protests should be curtailed. Will such judges protect the right of dissent of a citizen?

The vast majority of judges are men and women of integrity, but the number of black sheep is increasing. It is for the judges at the highest level to introspect as to why this is happening. Steps should be taken to regain the lost glory. This can and must be done because if people lose faith in the judiciary, the judiciary itself becomes irrelevant. That will sound the death knell for a democratic India. Where there is no democracy, the people can never be free or independent. 

“In a democracy, dissent is an act of faith.” — J. William Fulbright.