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Why We Need To Question Our Courts Just As Much As We Do Our Politicians

It’s time to replace blind reverence with critical thinking.

04/04/2017 4:23 PM IST | Updated 05/04/2017 12:35 PM IST
Anindito Mukherjee / Reuters

There seems to be no end in sight to the beef ban saga. Yet, there lies a silver lining in this cacophony. The drama that unfolded over the last few months has shown how Indians vehemently oppose and express their dissent against the government when they think it has gone awry. Even the outcry from the left on the appointment of the firebrand Hindutva leader Yogi Adityanath as Uttar Pradesh's Chief Minister highlights how people are not reluctant to raise their voices when they feel cheated. This is a significant development in our society. Debate, deliberations, and criticisms are some of the hallmarks of a well-functioning democracy. However, at the same time, the people's reactions towards another parallel phenomenon brings to light a very disturbing and concerning trend.

[U]nlike the rest of the civilised world, judges in India appoint themselves, and they do so behind closed doors. This fact should put actions by the courts under a microscope...

A few months ago, the Supreme Court of India ordered cinema halls all over the country to play the national anthem at the start of every feature film. It also required all those present in the cinema hall to stand up in respect while the anthem is played. I will not go into how this forcible patriotism is a flagrant violation of the Constitution's free speech guarantees; that is obvious. However, I will reiterate something I heard on the television drama The Good Wife: "There is no greater bedrock to our society" than free speech, without which "all other rights are at risk."

In most secular democracies, other than India, even acts like burning of the national flag are protected by free speech. Some news reports discussed the absurdity of the national anthem order along these lines and a miniscule number of individuals mocked it on social media. That was about it. Most of us accepted this as an unavoidable inconvenience in our lives and moved on.

In contrast, as mentioned above, even when the government preempts actions that threaten democratic ideals, let alone actually threatens democracy, we never acquiesce. We shout, we scream, we protest and in some cases, even respond with discontent at the ballot box. Similar actions by the courts never confront the same level of displeasure from the left or the right. Over the years, we have developed an ingrained blind deference to the courts. Perhaps this is a consequence of the courts doing a phenomenal job in nullifying a plethora of questionable legislations. There is a unanimous consensus that the Supreme Court's intervention in cases like Kesavananda Bharati v. Union of India was of paramount importance in safeguarding democracy in India. However, even if that is the case, this does not validate the uncontested acceptance of the courts.

Numerous scholars have cautioned that unaccountable courts can blur the lines of separation of power and put unnecessary strain on democracy.

Courts and their actions should face the same level of scrutiny as those of their Parliamentary counterparts. While Parliamentarians are directly appointed by the people and stay in office at their pleasure, the people have no hand in judicial appointments or removal. Further, unlike the rest of the civilised world, judges in India appoint themselves, and they do so behind closed doors. This fact should put actions by the courts under a microscope and subjected to stricter standards and justifications.

In 1962, a Yale Law School Professor, Alexander Bickel wrote about the problem of unelected and unaccountable individuals exercising such expansive powers and gave it the moniker "The Counter-Majoritarian Difficulty". This problem has "taken a life of its own" and has been the "dominant paradigm" of legal scholarship for most of the better half of the last half century. Numerous scholars have cautioned that unaccountable courts can blur the lines of separation of power and put unnecessary strain on democracy. In fact, the lack of significant checks on the courts in India have allowed the Supreme Court (as was seen in the national anthem case) to stray into the zone of policymaking and lawmaking that is usually best left to the institutional capabilities of the legislature.

[The] lack of significant checks on the courts have allowed the Supreme Court to stray into the zone of policymaking and lawmaking that is usually best left to the... legislature.

My aim is not to criticise Indian courts. Neither is my aim to suggest reforms to the institution of courts. I am almost certain that the courts have their heart in the right place and err less than any other polity in the country. But when they do, we need to question them rather than just stand by it. Even when they do not, we still need to question their judgment and ask whether and to what extent it was necessary. A perfect example of the latter is the National Judicial Appointment case. This case concerned the constitutional validity of the Ninety-Ninth Amendment to the Constitution which instituted the National Judicial Appointment Committee to appoint judges to the higher judiciary. This committee bought the Law Minister and other governmental appointees to the judicial appointment table. Perhaps the Supreme Court was right in holding that governmental interference in judicial appointment would have disastrous repercussions in India. Yet, people outside legal and journalistic circles should have questioned greatly the decision invalidating a constitutional amendment, which brought into place a system of judicial appointment used commonly all over the world, rather than submissively accepting it.

The courts have so far not gone astray but this is no indication that they never will. If they do, blind public support will only worsen things...

Courts sustain their legitimacy because of the public support their decisions command. It is thus the populace that acts as the guard for the guardians and provides the best check on preventing the courts from overstepping their boundaries. The courts have so far not gone astray but this is no indication that they never will. If they do, blind public support will only worsen things considering the tremendous power courts wield in India. Therefore, it is high time we start questioning the courts. After all, power corrupts, and absolute power corrupts absolutely. Questioning our politicians has sown the seeds for a system where leaders are aware that they must pay for arbitrariness, corruption and incumbency. By holding the courts to the same standards that we expect of our politicians we can help democracy in India climb to greater heights.

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