PRAVEENA SHARMA
Recognising the trying time the Indian Judiciary is going through, leading Supreme Court (SC) lawyer Sanjay Hegde said that the courts should go beyond just stating the law and play a more interventional role.
He said this while delivering a talk on the topic ‘Has the Judiciary Failed?’ at the Goa Chamber of Commerce and Industry (GCCI) last Saturday.
“The court has possibly recognised we are not living in ordinary times. This is the time when courts are required to do much more than just merely state the law,” goaded the senior advocate, who is a leading voice for civil rights.
To emphasise his point, he stated a line from English playwright, William Shakespear’s, Hamlet: 'The time is out of joint; O cursed spite! That ever I was born to set it right!'
The Supreme Court may have succeeded in one way, (but) as far as ending the dispute is concerned, it failed to set an example which would satisfy everyone because what the public has taken away from the Ayodhya judgment is that you can always push somebody aside and build your place.
Sanjay Hegde, Supreme Court lawyer
Over the last decade, Hegde perceives the Indian judiciary to be largely conformist, or “more than willing to go along with the government” in cases such as Article 370, Rafaele, Ayodhya and others, where the judgments of the courts were “more or less” in accordance with what the government wanted.
The fiery advocate, however, does not believe these orders came “out of the blue”. He saw them broadly as adaptations of majoritarian consensus of the day that got mirrored in these judgments.
He said often the manner in which questions get answered in courts is reflective of the character of the chief justice of the time, and lauded the “some courage”, shown by the current chief justice of India, D Y Chandrachud in the electoral bond and Chandigarh Mayoral election cases.
On the Ayodhya verdict, he commended the SC’s decision to use Article 142, which empowers it to pass a decree necessary for complete justice and is an effective tool for intervention.
Hegde, however, was disappointed how the case, which was meant to be a “mediatory exercise” became an “adjudicatory award”.
The Ayodhya verdict, which should have ended the temple controversy “once and for all”, has succeeded in “spreading it to Kashi Vishwanath temple and other similar cases” across the country.
“SC may have succeeded in one way, (but) as far as ending the dispute is concerned, it failed to set an example which would satisfy everyone because what the public has taken away from the Ayodhya judgment is that you can always push somebody aside and build your place,” he said.
So, the Ayodhya verdict, which should have ended the temple controversy “once and for all”, has succeeded in “spreading it to Kashi Vishwanath temple and other similar cases” across the country.
“Supreme Court – with its history, vision and desire – not to unnecessarily get into controversy, often ends up not only replicating the controversy, but extending it further. It is in its (court’s) failure to nip things in the bud or to not start things (another controversy) where courts have failed,” he said.
He expressed concern over two chief ministers – one who has resigned and the other a sitting one – being jailed in the run up to the elections.
He urged that the Constitution should not only be taken as a “book for the government” but also a pact between “citizen and citizen”.
He said, “We have crucial questions which will be agitated before the courts over the next month or so. At that point in time, what are the court’s answers likely to be. And, if a majority government comes to power after the elections, the more pertinent query would be, will it be a conformist judiciary or an over-conformist judiciary?”
Late jurist, Fali Nariman, had disclosed to Hegde that a majority government would mostly have a conformist judiciary, but the SC advocate has put his faith in the Indian Constitution.
“The Constitution is not just a document for the lawyers to quibble over; that is where courts will fail and you will have failed the courts. Potentially, we have to go back to reclaiming the Constitution,” he stressed.
He urged that the Constitution should not only be taken as a “book for the government” but also a pact between “citizen and citizen”.
The eminent civil rights lawyer called on everyone to heed the warning by the architect of India’s Constitution, B R Ambedkar, saying, “While bhakti is good in religion; maybe a source of salvation, in politics, it leads to degradation and eventual dictatorship."
“It is a contract, which says we, Indians, shall live in fraternity; that we shall respect each other’s individual choices – whether it be of food or religion – and that any government will be a limited government. The government will be of laws, rather than of men,” he urged.
The eminent civil rights lawyer called on everyone to heed the warning by the architect of India’s Constitution, B R Ambedkar, on the eve of his birth anniversary, saying, “While bhakti is good in religion; maybe a source of salvation, in politics, it leads to degradation and eventual dictatorship."
He continued, "This is the moment where if the country continues on bhakti, the court can only provide accompanying music. It is only when the country turns sceptical, questions the authority – says this can’t be because I have my right – that is when the country would not have failed the courts and courts would not have failed the country.”
