Judiciary Must Be Aware Of Unprecedented Constitutional Crisis Facing Our Republic & Defend Constitution And Rights
By Dr Mohan Gopal
Judiciary and Democracy: Justice Barak’s analytical framework
I would like to begin with the analytical framework developed by Justice Barak in addressing the issue of the role of the judiciary in a democracy. Justice Barak argues in “The Judge in a Democracy”: Our age is the age of democracy. New countries have joined the community of democracies. Many of them wish to re-examine the nature of modern democracy, which is not based solely on the rule of people through their representatives (formal democracy), but also separation of powers, the independence of the judiciary, the rule of law, and human rights (substantive democracy).
The protection of human rights — the right of every individual and every minority group— cannot be left only in the hands of the legislature and the executive, which, by their nature, reflect majority opinion. Consequently, the question of the role of the judicial branch in a democracy arises.
Justice Barak goes on to say in his book:
In my opinion, every branch of government, including the judiciary, must use the power granted to it to protect the Constitution and democracy. The judiciary and each of its judges must safeguard both formal democracy, as expressed in legislative supremacy and proper elections, and substantive democracy, as expressed in the concepts of separation of power, the rule of law, fundamental principles, independence of the judiciary, and human rights…. In light of the increasing recognition of judicial review of constitutionality of statutes since World War II and of the inclusion of human rights provisions in new constitutions, the second role, preserving democracy, has grown in importance.”
The distinction made here by Justice Barak between formal democracy (electoral democracy, legislative supremacy, proper elections) and substantive democracy (separation of powers, the independence of the judiciary, the rule of law, and human rights) provides us a useful enumeration of the key dimensions of democracy that must be considered in assessing the role of the judiciary. Justice Barak’s division between formal and substantive democracy is merely an analytical framework . It does not deny the essential inter-relationship of the two dimensions.
The ethos of the Indian Constitution is rooted in democracy
Seventy-five years ago, the people of India declared their solemn resolve to constitute India into a democratic Republic. Democracy, and its constituent values of liberty, equality, fraternity, dignity and human rights for the powerless, are thus at the core of the vision of the Indian Republic. The ethos of the Constitution of India is rooted in democracy, at the core of which are human rights. This is not surprising because the Universal Declaration of Human Rights (UDHR) was drafted and adopted between February 1947 and December 1948 in parallel with our Constitution (which was drafted and adopted between December 1946 and November, 1949).
The preamble of our Constitution commits the Republic of India to substantive ideals of equality, liberty, fraternity and unity which are keystone human rights values. Part III of the Constitution sets out the essence of the human rights laid down in UDHR as judicially enforceable fundamental rights. Summarizing the Directive Principles of Public Policy which reflect key human rights principles, and setting out the mandate of the Republic, Article 38(1) says,
“(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.”
We’re ruled by an oligarchy
There is an additional and crucial dimension to substantive democracy in India — representative democracy. Speaking at the 1930 Round Table Conference as the representative of the Depressed Classes, Dr. Ambedkar warned that after the British rule, India would be ruled by an “oligarchy” (a small group of people having control of a country). Today, as predicted by Dr. Ambedkar, we are ruled by an oligarchy. We have a sharp concentration of social, religious, economic, political, bureaucratic, legal and judicial, professional, cultural power as well as control over media and academia, in members of just four communities at the national level and about 2-3 communities in each state. Over the last 75 years, our oligarchy is also growing strongly into a plutocracy (government by the wealthy). To counter the emergence of an oligarchy, Dr. Ambedkar demanded representative democracy — a representative government with due (proportionate to the population) and adequate (effective) representation for all communities in public employment (judiciary and executive) and for depressed classes in the legislature.
Regrettably, the democratic practice of our State institutions has remained focussed on electoral democracy. It has neglected the centrality of representative democracy and the protection of human rights of individuals and minority groups — which have been central to civil society Constitutional activism and politics. As a result, the State’s understanding of democracy and our jurisprudence is lacking in these key areas. This has created an ambivalence in the State’s approach to democracy that remains a vulnerability for India.
The Struggle over Democracy in India
From the very outset, the rulers of the country were uncomfortable about democracy and sought to control and limit democracy, and the rights of the powerless. The first amendment to the Indian Constitution, made only some fifteen months after the Constitution came into effect, added three further grounds of restrictions to narrow the fundamental human right to freedom of speech and expression guaranteed in the then-new Constitution. The resistance of rulers against democracy has only grown and intensified since then, reaching an apogee in the emergency that was declared in 1975, 25 years after the Constitution came into effect. Today, nearly a half-century (48 years) after the emergency and 73 years after the Constitution came into effect, the resistance against democracy has overtaken its 1975 apogee, and is seeking to reach its ultimate zenith which will lie in the overthrowing of liberal democracy and the replacement of the democratic republic by a theocratic autocracy.
For over a century, the Hindu Mahasabha (formed in 1915), the Rashtriya Swayamsevak Sangh (RSS, formed in 1925) and other like-minded organizations have maintained that India is a “Hindu Rashtra”. They have developed a “Hindi-Hindu-Hindustan” (H3) platform as its cultural-social-political guiding vision of the movement to establish the Hindu Rashtra. This H3 vision rejects the key tenets of democracy, formal and substantive — elected governments, separation of power, the rule of law, independence of the judiciary, and human rights. The H3 vision also rejects the idea of representative government demanded by Dr. B.R. Ambedkar and embedded in Article 16(4) of the Constitution. The actualization of the Hindu Rashtra will necessarily require the overt or covert overthrowing of the Constitution.
Since 2014, control of the Union executive and legislature has been taken over by H3 groups. As institutions, therefore, the Union executive and legislature are today simply incapable of protecting themselves or protecting democracy. The judiciary is the only branch that is not controlled by a group committed to the H3 agenda. This has created a grave Constitutional crisis that is not envisaged in the Constitution.
The Constitution is equipped to deal with an existential challenge against the Indian Republic from five types of attacks: war, external aggression, armed rebellion, internal disturbance and the failure of the constitutional machinery in States. The Constitution vests extraordinary emergency powers in the Union to deal with these challenges. However, the Constitution is not equipped to deal with the challenge of the Union being in the hands of a group committed to taking down the Republic and replacing it with a Hindu Rashtra.
In these circumstances, the Indian judiciary has a very special and unparalleled responsibility to protect democracy and the Republic. It is in this context that the question of the role of the judicial branch in our democracy arises and the responsibility of our judiciary needs to be assessed.
The Supreme Court’s contemporary track record on protecting the Constitution and defending human rights
While there is a large and powerful body of jurisprudence in which our Supreme Court has delivered judgments which have protected the Constitution and defended human rights over the years, there is a sufficient number of worrisome contemporary matters of great consequence in which the judiciary does not appear to be able to adequately protect the constitution and defend substantive democracy. Here are some examples.
Judicial primacy in judicial appointments:
Perhaps the most serious strategic issue that will influence the ability of the judicial system to fulfil its responsibility to protect the Constitution and defend democracy is the issue of appointments and transfers of judges in constitutional courts. There is a clear H3 political agenda to exclude from, or delay entry into, the Supreme Court, certain judges with impeccable liberal democratic credentials, respected for their competence, integrity and fierce independence; and to induct into the Supreme Court judges whose legal views are genuinely and bona fide aligned on critical issues with the ethos behind the broad H3 agenda. This is not to suggest in any way that those sought to be inducted would, if appointed, be under the control of the government or any political or other group, or would tailor their decisions to any directions, preferences or incentives. They would be acting independently of their own accord. Although the collegium system established by the Supreme Court does not allow the Union a veto in appointments to constitutional courts, the Union is able to successfully exclude and delay, or include, judges selectively so as to fulfil their H3 agenda. A key strategy is simply sitting on appointments which have been approved by the collegium and letting them run out. In turn, this adversely affects public trust and confidence in the Supreme Court. In such cases, there seems to be reluctance on the part of the Supreme Court to enforce the law it laid down in the judges’ cases on appointments and transfers of judges.
Protection of liberty: Substantive democracy is being pushed back by the judiciary by not proactively and rapidly protecting free speech and dissent; by not stepping in to rein in extensive selective prosecution of opponents while sparing those who align with the ruling regime; by permitting prolonged under-trial detention of democratic activists, opposition leaders and journalists even in the absence of adequate evidence against them; by not devising legal measures to prevent hate speech and communal violence against minorities; by not effectively protecting religious freedom and press rights; by allowing growing concentration of economic power; and by not stopping open theocratic assertion of Brahmanic Hindu religion in public spaces and institutions, in effect converting India into a “quasi-secular” state.
Minority rights: Substantive democracy was pushed back by the judiciary in the Ayodhya judgment (2019) in which a political dispute was, in the words of Justice Barak, dressed up in legal garb so as to ensure that the Ram temple would be constructed before the 2024 elections by the Hindu party to the dispute. As a matter of coincidence, the judgment fulfilled a long standing main plank of the H3 agenda. This decision has dented confidence in the Supreme Court’s role in protecting human rights of minority groups. The decision on the abrogation of Article 370 and the lowering of the status of Jammu and Kashmir into two Union Territories has also eroded confidence in the role of the judiciary in protecting human rights of minorities — the human and democratic rights of the people of Kashmir, which was the core issue involved, did not even adequately figure in the formalistic judgments delivered in the Article 370 matter. Again as a matter of coincidence, this judgment also fulfilled a long-standing main plank of the H3 agenda. Representative democracy was also pushed back by the judiciary in the split judgment upholding reservations for economically weaker sections from amongst forward communities (2022), reducing by 10% the space available for representation of unrepresented communities. Substantive democracy was pushed back by the judiciary when Prashanth Bhushan was convicted for contempt in 2020, sending a chilling signal against any questioning of the conduct of judges given the nature of the issues involved which was generally seen as not serious enough to merit the titanic response of the Supreme Court. Substantive democracy was also pushed back by the judiciary in deference to the H3 sentiment when the judiciary rejected recognition of same-sex marriage in 2023.
Criminal law: Substantive democracy was set back when the judiciary did not ensure a proper investigation into the Sahara-Birla matter in 2017 or the Rafale controversy in 2019, both of which involved serious allegations of corruption against the Union government. Substantive democracy was avoidably pushed back by the judiciary when it pre-empted a normal police investigation into the death of Judge Loya in 2018. Substantive democracy was set back when the Supreme Court allowed the government to by-pass the Rajya Sabha (where it then did not have a majority) and enact as money bills several crucial laws that made incursions into human rights, including the Aadhar Act and amendments to the Prevention of Money Laundering Act (PMLA) that made significant changes to the powers of the Enforcement Directorate (ED). Substantive democracy was again pushed back by the judiciary when it did not address key legal issues raised before it regarding demonetisation. Substantive democracy is pushed back by the delay in taking up petitions filed against electoral bonds.
Why is the judiciary on occasion aligning on occasion with the H3 agenda?
It appears that a key part of the strategy to establish a Hindu Rashtra in India is to do so through theocratic constitutional interpretation by the Supreme Court rather than through replacing the Constitution with a brand new constitution (as has been done in the case of the criminal codes) or through comprehensive amendments of the existing Constitution. This strategy will require H3 forces to dominate the judiciary as they have done in the case of the executive and the legislature. It is only to expected that this will be sought to be accomplished. There is already today a rising presence in the legal community (academia, bench and bar) of those who genuinely buy into the H3 agenda of the Union —that India should be a theocratic Hindu Rashtra and not the modern secular democracy envisaged in the Constitution. They believe this genuinely, bona fide, sincerely. They do not need any incentive or reward to work towards this goal. Unlike in the 1975-77 emergency, there is no need or room for any direction or command to be delivered to them to advance the H3 ethos.
What can be done to ensure that the judiciary discharges its responsibility to protect the Constitution and defend democracy?
Speaking at the 1930 Round Table Conference as the representative of the Depressed Classes, Dr. Ambedkar warned that after British rule India would be ruled by an “oligarchy” (a small group of people having control of a country). When India became independent in 1947, the two social groups that had subjugated the dominant Hindu communities and ruled India for a millennium left (the British were ousted and the Muslim ruling classes created their own independent homeland) . The dominant Hindu communities became the unchallenged rulers of India. The others — the Scheduled Castes (SC), Scheduled Tribes (ST) and the socially and educationally backward classes, as well as the religious minorities that were left behind, who together constitute some 85% of the population— are still too weak to seriously challenge the dominant communities.
History has proved Dr. Ambedkar right. Today, we have a sharp concentration of members of dominant communities in the social, religious, economic, political, bureaucratic, legal and judicial, professional, cultural and epistemic (relating to knowledge) domains, in the media, in academia and in the learned professions. In the last 75 years, our oligarchy has acquired immense wealth and grown into a plutocracy (government by the wealthy). The legal realm — the judiciary, the Bar and legal academia — are heavily dominated by members of oligarchic communities.
This oligarchy is leading the drive for the establishment of a Hindu Rashtra in India in order to entrench their oligarchic, plutocratic rule. To counter the emergence of an oligarchy, Dr. Ambedkar demanded representative democracy — a representative government with due (proportionate to the population) and adequate (effective) representation for all communities in public employment (judiciary and executive) and for depressed classes in the legislature.
Therefore, the first step to ensure that the judiciary consistently and reliably protects the Constitution and human rights of individuals and minority groups is to end oligarchic social domination of the judiciary by making the judiciary diverse and representative. Given that the executive is leading the charge against the current ethos of the Constitution, the only very small window we have for this purpose is for the collegium to make a concerted effort to increase diversity and representation in the Constitutional court and bring into the judiciary individuals who have a proven track record of protection of human rights of individuals and minorities.
The second step is to create greater public awareness about the role and responsibilities of the judiciary in a democracy. As noted, Justice Barak identifies one of two key roles of a judge in a democracy is to defend the Constitution and protect democracy. The oath taken by judges of the Supreme Court and High Court as mandated in the Third Schedule to the Constitution, in relevant part, requires the judge to swear in the name of God or to solemnly affirm that, she or he will bear true faith and allegiance to the Constitution of India. The Preamble to the Constitution clearly says that the purpose of the Constitution and of the Republic is to constitute India into a democratic Republic. This means that, so long as they hold office, all judges must have faith in democracy as defined in the Constitution. In tun, this means that judges must have faith in human rights. Says Justice Barak, “Above all, a democracy cannot exist without the protection of individual human rights — rights so essential that they must be insulated from the power of the majority.” Having faith in democracy and human rights means that a judge cannot have faith in the authoritarian idea of a Hindu Rashtra with its “othering” and graded inequality between humans. Swearing faith in the Constitution means swearing faith in democracy; in individual human rights; in minority human rights; in the rule of law. The implication is that individuals with faith in the theocratic Hindu Rashtra idea would be disqualified to be judges. The assumption that all judges would have faith in the Constitution is the reason why the Constitution does not provide for any remedy to the current situation in India in which those who have faith in the Hindu Rashtra assume Constitutional offices.
Conclusions
Given that the executive and legislative branches have already fallen under the control of groups that have openly committed themselves to establishing a theocratic nation totally opposed to the Constitutional vision of formal and substantive democracy, the Indian judiciary is the only branch of the Indian state that is still at this time independent enough of anti-democratic forces to be able to resist this onslaught and protect the Constitution and defend human rights. We earnestly hope that the judiciary is aware of this unprecedented constitutional crisis facing our Republic and will study and reflect on their oaths carefully and ensure that they stoutly defend the Constitution and protect human rights of individuals and minorities. To stave off the challenge against democracy, we also need to take forward Dr. Ambedkar’s vision of representative democracy (including a representative judiciary) as well as put the human rights of individuals and minorities at the centre of our own public vision of democracy.
Dr G. Mohan Gopal, who is an eminent jurist delivered the fourth Professor Shamnad Basheer Memorial Lecture organized by Live Law on December 22, 2023. This has been edited for length and reproduced with the kind permission of the author.