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Strong judiciary provides hope for Indian democracy

As I write this article on the eve of India's golden jubilee as free and independent nation, the mood of its citizens is sombre. While the nation's foolish and discredited political class trumpets free India's allegedly glorious achievements of the past half century, the nation's intelligentsia and the educated middle class in general is painfully aware of missed development opportunities which have transformed this high-potential nation which catalysed the beginning of the end of the British empire, into one of the contemporary world' most pitied, no-hope nations.

Perhaps free India's greatest failure has been the citizenry's inability to build strong and durable institutions which could have carried the development process embodied in the nation's ambitious nine five-year plans to their logical conclusion. The consequence of the national failure is an overpopulated nation characterised by mass illiteracy, numbering poverty, chronic shortages and a crumbling infrastructure.

Fifty years after the nation began its 'tryst with destiny', honesty demands that the establishment admits that it has failed by a long way to realise Mahatma Gandhi's dream of wiping every tear from every eye.

But the electrocardiogram of the nation does not present a picture of unrelieved gloom. While the achievement of most institutions of governance is that they have survived the depredations of the new lumpen bourgeoisie class which has swamped them, two institutions have grown from strength to strength -- the judiciary and the media (press and television). This development provides a glimmer of hope that post-Independence India's democratic experiment may survive the thousand unnatural shocks that are daily visited upon it.

In particular, the nation's judiciary has emerged as a bulwark institutions which of late has been protecting and expanding the ambit of citizen's rights even as it has been plucking the mighty from their sets and subjecting them to the rule of law. While the judiciary's refusal to be overawed by the popular appeal of king-maker and Bihar's former chief minister Laloo Prasad Yadav has been grabbing the media headlines, on the eve of the nation's 50th anniversary of freedom, the judiciary has distinguished itself by passing two landmark judgments which have given pith and substance to the citizen's fundamental rights incorporated in Article 19 of the Constitution of India.

On July 28, in a long overdue ruling, a bench of the Kerala high court declared that bandhs, or general strikes, called by political parties or other organisations are 'illegal and unconstitutional.' The court ruled that organisations which call general strikes are liable to be hauled up for contempt of court and/or 'are liable to compensate the government, the public, and private citizens for the loss suffered by them.' And more recently, the Supreme Court, whose earlier judgment making it mandatory for Muslim men to pay alimony to their divorced wives was nullified by parliamentary legislation, has once again struck a blow for natural justice by ruling (July 30) that Muslims males are obliged to maintain their children after divorce.

Predictably, both these path-breaking judgments have aroused the wrath of ideological and religious fundamentalists. Suprademocrats of the Left who tend to equate workers' rights with citizens rights and politicians who call bandhs at the slightest pretext are up in arms because this peculiar mode of expressing protest which brings business and economic activity to standstill has been outlawed. And while protest against this correction of Muslim personal law has thus far been muted because of the self-evident argument in favour of the ruling, it is only a matter of time before it snowballs.

Yet, because these (and most other) rulings of the courts are so manifestly just but uncomfortable for politicians who have been exercising power irresponsibility for over your decades, the challenge to the judiciary is likely to be indirect rather than head-on. Already murmurs about an (over)activist judiciary, setting 'parameters' for admission or public interest litigation (PIL) cases and curbing the power of the Chief Justice of the Supreme Court to have the final say in judicial appointments are getting louder.

But to defend the judiciary against the executive and the political class as a whole is not to say that all is well with the legal system. There's much that is also wrong with it.

The law's delay is legendary and unpardonable. The failure to design a workable legal aid system has made access to legal forums very difficult for the vast majority. Legal procedures are archaic and time-consuming. And the bar which constituents the body of the legal profession, is impervious to the crying need for reforms of the civil and criminal procedural laws.

Yet, it is these very infirmities of the legal system which argue for public support for constructive reform to fortify one of the few institutions of governance which has made a genuine effort to protect and give substance to the civil and constitutional rights of the general population. In particular, the proposal to transfer to the executive right of the Chief Justice of India to clear all judicial appointments should be strongly resisted by all right-thinking citizens. Such a transfer of power will lead to packing of the courts with under-qualified political favourites who will surely subvert one of the few institutions of which post-Independence India can be proud of.