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Claim of nation-building by the elite is suspect

Habeas corpus petitions are gathering dust since August last year. The urge to not disturb the State has not gone. But the main idea behind all this is that the judiciary and the legislature, or to be more specific, the government, should work together for the project of nation-building. It needs to be rejected. Cowardice and bullying are two sides of the same coin and they define the character of our elite.

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Apoorvanand

Professor, Delhi University

THE city flourishes when its great institutions work together,’ says the cardinal to the newspaper editor during a friendly chat in the rectory in the movie Spotlight (2015). The city in question is Boston. The cardinal is Bernard F Law and the editor, newly arrived at The Boston Globe from The Miami Herald, is Martin Baron. He politely dissents from the cardinal’s vision of civic harmony, arguing that the paper should stand alone.

The background of this interaction is the large-scale and intensive investigation by the Spotlight section of the newspaper The Boston Globe into the charges of sexual abuse by the clergy of the church. The investigation threatens to shake the foundation of the church.

The investigation is on and a party is hosted in which Martin Baron meets Cardinal Law. The cardinal starts a conversation with Martin. He doesn’t refuse. But the conversation starts and ends in a minute. The actual dialogue is as under—

Cardinal Law: If I can be of any help, Marty, don’t hesitate to ask. I find that the city flourishes when its great institutions work together.

Martin Baron: Thank you. Personally I’m of the opinion that for a paper to best perform its function, it really needs to stand alone.

This dialogue has remained etched in my mind. For the city to flourish, its great institutions need not work in tandem but they need to stand on their own, in Martin Baron's words, ‘stand alone’.

This scene has never left me. When Ranjan Gogoi said that he had accepted his Rajya Sabha nomination to ensure that the judiciary and legislature work together for the task of nation-building, it resurfaced. Felt like telling Ranjan Gogoi that he must remember that he does not belong to the judiciary anymore. He would soon be part of the ruling political class. Second, nation-building is not the role of the judiciary.

We should be suspicious of any claim of nation-building, especially when it comes from one of the elite. They want to build the nation in their image. Cowardice and bullying are two sides of the same coin and they define the character of our elite.

The polite firmness of Martin, the editor, stumps Cardinal Law. He gives up on him. But in the case of India, our unfortunate country, every cardinal knows that there are very few Martins!

In the last few years, the dialogue between the two kept returning on several occasions. One was when the newly enthroned Prime Minister was speaking at a conference of the chief ministers and the chief justices of all high courts. At that conference, PM Modi said the judiciary should be cautious about delivering perception-driven verdicts, especially when perceptions were sourced from ‘five-star activists’.

A response, courteous and yet with candour, was what was expected from the justices. But we were too naive to nurture such hope.

Earlier at the conference, it was the then Chief Justice of India HL Dattu who described the relationship between the judiciary and the executive as that of siblings who hold each other’s hands and correct each other when needed. The judiciary, he said, was open to ‘suggestions, change and dialogue’ to improve the administration of justice.

So, this deference to the government is not an invention of Gogoi. And he would not be the last judge to disappoint us in this regard.

The scene from the film Spotlight came back when the Supreme Court threw open Court No. 1 for the Prime Minister. Gogoi had just taken the chair of the CJI. No Prime Minister had expressed such a desire, so there was no precedent of a response to such a request. Many from the legal community had expressed their uneasiness even then.

There are in the public domain dozens of articles criticising Gogoi for his judgments which were aligned with the political agenda of the ruling party. Be it the total disregard for urgency in matters of habeas corpus or reading down of Article 370, or the judgment on the purchase of the Rafale jets or the judgment on the Ayodhya dispute, the Supreme Court under the leadership of Gogoi failed the nation. But was he alone?

The arrogance that our lordships display when a commoner is before them turns into servility before the powerful. That is why Gogoi could throw Harsh Mander out of his own petition. That is the reason Gogoi could brush aside the case of the attack on Kanhaiya Kumar that was raised by Prashant Bhushan.

The attack on Kanhaiya in the Patiala Court was not a light matter. It was the Supreme Court which had taken cognisance of it and had sent a team of senior lawyers, asking them to submit a report on the happening. For some undisclosed reason, the court lost interest in it and never considered the report given by the aforementioned team.

Gogoi was still fresh in his chair. Yet, the manner in which he dismissed the request to constitute an SIT to probe the attack should have alarmed us. This is what he told Bhushan, ‘We don’t think we will flog a dead horse to life.’ Brushing aside the plea by Bhushan that ‘if this kind of incidents go unpunished... and it involves contempt of court,’ Justice Gogoi said, ‘Forget it... constituting a Special Investigation Team (SIT)... we don’t think we will.’

It was Gogoi who championed the idea of the NRC with a zeal which was hard to explain. He declared the NRC to be the base of the future of India. Even when he was in chair he declared, ‘NRC, as it will finally emerge, is not a document of the moment — 19 lakhs or 40 lakhs is not the point. It is a base document for the future — kind of a reference document to determine future claims.’

It had become very clear that the court under Gogoi had decided to be the troubleshooter for the executive. But we should not forget that Gogoi was not alone, when one by one all this was being done. And what he did continues. Habeas corpus petitions are gathering dust in the registry since August last year. The court overturned the bail given to 21 ‘anti-CAA protesters’ given by the Karnataka High Court, disregarding its observation that the police had not given conclusive evidence of their presence at the protest site and had ordered FIRs against the police officers instead. The most recent instance is the reluctance of the Supreme Court to defend the order of the Allahabad High Court, in which it had asked the UP government to remove the banners carrying the names and photographs of the anti-CAA protesters.

The urge to not disturb the State has not gone. But the main idea behind all this is that the judiciary and the legislature, or to be more specific, the government, should work together for the project of nation-building. It needs to be rejected.

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