Marquess Acton of Groppoli famously said, “Power corrupts, and absolute power corrupts absolutely”. In order to prevent absolute power from corrupting absolutely, the founding fathers of free India established the Indian judicial system.
The Indian judicial system has been hailed as the third pillar of democracy. Its primary duty as bestowed by the Constitution of India was to keep a check on the government and to protect the rights of the citizens. Created as a way to balance the powers of the legislature and the executive, and purposely kept out of reach and influence of the aforementioned, the judiciary enjoys the privilege to interfere and overrule the legislature and/or the executive. Vested with the powers of protecting the democratic institutions and championing the rights of the people of India, the judiciary has managed to create for itself an image as a “paragon of justice”, intervening even in matters of public policy to ensure the end of good governance is served.
However in the last 18 months, this carefully built facade has been slowly but surely crumbling. It reveals the image of an institution not strong enough to weather the pressure and demands of the public, and an institution apathetic to the innumerable human rights violations that currently encumber the nation. In order to understand how the judiciary has failed to step up and take charge when it needed to, a recounting of its majorly catastrophic judgments and silence in these past few months is imperative.
We begin by recounting the migrant crisis that underscored the disaster wreaked by the coronavirus pandemic. For months, our phones, televisions and newspapers were brimming with stories of resilient men and women travelling hundreds of kilometres to reach home or to seek medical care when the nation went into lockdown. Amidst those stories were also reports of workers and the underprivileged people of India dying on roads because of hunger and thirst, and being killed in accidents.
When the country was put under lockdown with barely a 24-hour warning in advance, ration shops, factories, and markets were closed down. The daily wage workers were forced to leave their premises and travel back to their hometown from the big cities when they could neither continue working nor be able to afford rent or food. No modes of transportation or provisions for basic necessities were forthcoming which left these migrant workers and daily wage workers stranded. In the first week of June, the Chief Labour Commissioner estimated that around 2,600,000 migrants were stranded across India.
The Government of India’s failure to account for the millions of underprivileged people in India while formulating the policy of lockdown was not seized upon by the judiciary. At a time when the courts should have taken charge and forced the government to care for the safety and health of the underprivileged citizens, the judiciary’s silence was jarring. Its neglect of the most vulnerable people in the country highlights its egregious failure to uphold the promise of equality in the Indian Constitution.
The horrible human rights violation in the state of Kashmir following the abrogation of Article 370 is yet another failure of the Indian judicial system. 12,500,000 people had to live without access to the internet and were isolated from the rest of the nation under the most stringent military supervision while we heard snippets of the horrors many Kashmiris faced. It took almost a year for the apex Court of India, the Supreme Court to re-establish the privilege of mobile connections in Kashmir. Yet it does not absolve them of their silence and willingness to ignore the hundreds of petitions and Public Interest Litigations (PILs) against the government’s decision regarding Kashmir. The government did not even receive a slap on the wrist from the courts for their actions, underscoring the judiciary’s failure to uphold and protect the fundamental rights of the citizens of India.
This failure is only aggravated by the superficial response of the courts on the arrest of students, activists, lawyers and journalists by the government for protesting against the Citizenship (Amendment) Act, 2019. The right to protest and question the government is the key feature of a democracy, and the authorities blatantly violated that right by putting people in jail.
Varavara Rao, a 79-year-old poet, teacher, and activist, has been diagnosed with COVID-19, yet he suffers in jail for protesting against the government. Sudha Bharadwaj, Hany Babu, and Natasha Narwal are some of the innumerable students and teachers who have been arrested for dissenting. The judiciary’s fear of displeasing the current authorities and holding them accountable for their offence is blatantly emphasised by their inability to protect the democratic principles that uphold the structures of democracy.
Neglect and lack of concern for extrajudicial killings is yet another characteristic of the Indian judicial system. While it certainly seems extremely heroic for police to take charge, and kill rapists and gang leaders, it undermines the role of a justice system. The glaring misuse of power by the police is a violation of fundamental rights and does not create the deterrence necessary to desist future perpetrators.
While the judiciary fails to perform the duties it was conferred by the Constitution, they excel in performing a role that they should avidly be avoiding: moral policing. The judiciary has a history of passing moral judgments on rape survivors. In a recent rape case, the courts berated the girl for falling asleep after being raped, saying “It is unbecoming of an Indian woman to fall asleep after being ravished” while in another case, the Court dismissed a sexual assault case by asking the girl to tie a Rakhi (an amulet tied by sisters around the wrists of brothers, symbolically protecting them) to the person who assaulted her. The courts questioning the moral character of the rape survivors and instances of victim-blaming and shaming form a major chunk of court proceedings. This behaviour is unbecoming of an institution built to protect the dignity of the citizens of India.
The failure and decay of the judicial system in India is a precursor to receding public trust in justice, lack of accountability of the government, and misuse of power leading to a very dystopian-like future.
What is justice? What is right and what is wrong? The question of morality and justice has remained unanswered, making the duty of the judiciary difficult. However, we do not expect our courts to answer this question, neither do we expect perfection from our courts, we only expect competence and determination to not purposely violate our freedom and fundamental rights. The role of the judiciary is crucial for the efficient functioning of the country, but during times of rampant fascism led by the government and civil turmoil, it is the duty of the judiciary to keep the country from spiralling into chaos.
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