Monday, December 21, 2015

India's Judicial System is Also Under Trial

Delhi may choke on bad, polluted air, but it thrives on the rank odour of gossip, insinuations, innuendoes and conspiracies. The judges also breathe the same air. They do not live in a monastery.

A few days ago, when the new chief justice of India took office, he sought to assure citizens that the judiciary was vigilant and competent enough to safeguard constitutional values and republican virtues. The National Herald case will now test that assurance.

A BJP leader, Subramanian Swamy, has filed a petition against Sonia Gandhi and six others, which, according to the Hon’ble Mr Justice Sunil Gaur of the Delhi High Court, has put the “probity of a legendary National Political Party … under [the] scanner.” The Gandhis’ pride may get slightly singed as they find themselves having to respect the court summons. But it would do the maa-beta, to borrow Narendra Modi’s colourful phrase, a lot of good to be seen as respectful of judicial institutions and not positioning themselves above the law. Sonia Gandhi has to repair the damage her parliamentary managers have inflicted on her party and on her own reputation with their disruption of parliament by way of a protest against the so-called “politics of vendetta.”

Many knowledgeable Congressmen with professional competence in matters of law have argued, with considerable vigour and force, that in the National Herald case the judicial process is being abused for settling a few political scores. The Congress party is perfectly entitled to use the summons in the case to kick up a shindy in order to energise its cadres outside parliament. Of course, without giving the impression of wanting to overwhelm the judge. Whatever be the merit in the Congress argument of a “politics of vendetta” at work, this will not be the first time — nor would it be the last — that a courtroom becomes the arena for rearranging political equations and forces.

It has been suggested that this regrettable tendency began with the Allahabad High Court 1975 ruling in the Indira Gandhi vs Raj Narain case. A popularly elected prime minister was sought to be unseated for what had been called a ‘traffic-ticket’ violation. No critic of Indira Gandhi has ever seriously suggested that her campaign manager’s minor infringements – though, bad in law — made a substantive difference to the outcome in the Rae Bareli constituency. What her political rivals could not accomplish in the electoral arena, they managed to achieve in a courtroom. The judgment had long-term consequential ramifications. The polity lost — and is yet to recover — its basic and indispensable equilibrium, a proposition that is at best an elusive concept, but very much identifiable by an unmistakable sense of fairness.

Over the years, this itch to use a judicial forum to ground a political rival has got entrenched as an inspired infirmity. Therefore, the Gandhis’ momentary discomfort is only a minor footnote in the judiciary’s larger struggle to extricate itself from the politician’s tricks and traps and to rediscover its aura of institutional distance and detachment.

It is politically correct to assert that the judiciary is above the political fray, just as it is very satisfying to insist that no one is above the law. This is one of our cherished democratic conceits. Delhi may choke on bad, polluted air, but it thrives on the rank odour of gossip, insinuations, innuendoes and conspiracies. The judges also breathe the same air. They do not live in a monastery.

Suddenly, a high court judge has decided to read an “expanded meaning of the law” and has expounded that “in a democratic set-up, how a political party of national stature acts is everybody’s concern.” Hence, a prima facie case of wrongdoing is evident and needs to be settled as per the established procedure. The magisterial exactness of that procedure demands the Gandhis’ appearance in the Patiala House court. And, appear they must — that too without much fanfare.

The BJP leadership, though enamoured of its own considerable cleverness, will discover that Swamy is a mixed blessing. Sonia Gandhi herself learnt that painful lesson when she allowed him to broker a truce with Jayalalithaa over a famous tea party in 1999. The BJP’s ‘we-have-nothing-to-do-with-Swamy’s-petition’ stance is strictly for the birds.

A larger war
It is hard to overstate the fact that perhaps an old battle has been resumed with fierce determination. There is an entrenched group of intelligent, sharp, determined men and women who vindictively feel that time has come to show the Nehru-Gandhis their place. The same cast of characters had almost succeeded in frog-marching Sonia Gandhi to jail in 2003, but that fair man — Atal Bihari Vajpayee — happened to be the prime minister and he put his foot down against gross misuse of the government’s coercive instruments. That interrupted battle will now be resumed at Patiala House.

Then there is a larger war: the Sangh parivar’s fifty years old, interminable standoff with the Nehrus and the Congress party. The Sangh parivar is only too painfully aware that Jawaharlal Nehru had single-handedly mobilised Indian public opinion against a Hindu right-wing takeover soon after independence. But having played no role whatsoever in the national struggle, the Sangh was no match. Now its various affiliated fronts are trying to earn respectability for themselves by wanting to de-legitimise the Congress and the Nehru-Gandhis. Indeed, the Sangh parivar has a grudge against Atal Bihari Vajpayee: he could not finish off the Congress. He was deemed to be too mild, too gentlemanly and on his watch, he allowed Sonia Gandhi to lead the Congress back to power. This resentment against Vajpayee has since coloured the parivar’s management of the BJP’s leadership question.

Let us recall the manoeuvring within the BJP in 2013. The outcome of that manoeuvring hinged precisely on the consideration as to which prime ministerial candidate would go the whole hog after the Gandhis. Post-May 2014, there is a new determination to fix the Gandhis.

Admittedly, the National Herald case has broken the post-Bihar momentum.The case has made the Gandhis look less pretty with the middle classes, and has raised the presumed cost for others for doing political business with the Congress of the Gandhis. The Congress president has been brought down from ordination to ordinariness. This in itself is not necessarily an unwelcome denouement.

More than the Gandhis, the Indian judicial system is on trial. All said and done, the Gandhis head a legitimate political institution, with over a hundred years of political legacy. At stake is India’s reputation as a stable political order, sustained by an institutional equilibrium. In particular, that much sought-after customer — the foreign investor — would want to reassure himself that India has not become a banana republic, with a finicky, malleable judiciary that can be easily involved or intimidated by the politician.


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