“Constitutional democracy is one where majority will and rule are controlled and directed by constitutional principles”: Justice Venkatachaliah

Padma Vibhushan Awardee former Chief Justice of India MN Venkatachaliah delivered the lecture on the subject, "Is our judiciary delivering on its role as a sentinel on the qui vive in these changing times?" at the Third Annual RTI Lecture organised by the Money Life Foundation.

Other keynote speakers of the panel discussion comprised former judge of the Supreme Court Justice AK Sikri and Senior Advocate Indira Jaising. Former Chief Election Commissioner of India and Moneylife Trustee TS Krishnamurthy presided over the event.

"Constitutional democracy is one where the majority will and rule are controlled and directed by constitutional principles. Otherwise, it will sooner or later degenerate into elective despotism and then mobocracy," said Justice Venkatachaliah.

On the importance of rights and liberties under the constitutional system he noted: "It expresses the constitutional philosophy of checks and balances. It simply means this – a structure of government should be so designed that each branch is a sentinel on the qui vive against the other two, lest they become too powerful or too autocratic."

He further observed that earlier judges were only playing the role of an umpire but not so anymore. Now judges play a proactive role in making of the law and, by relaxing the locus standi, they have expanded the scope for people to approach the courts.

Emphasising the role of the citizen in a democracy, he said "…no office in the land is more important than that of a citizen."

Justice Venkatachaliash observed: "Judiciary is a sentinel on the qui vive against subversive electoral processes."

"Various surveys around the world show a considerable increase in calls for a strong leader, who does not have to bother with parliament and elections, and that trust in governments and political parties is at a historical low. This is the pendulum effect, as they call it. If you go to the other end, you think the next opposite end is heaven. This is how the public mind is, and trust in governments and political parties is at a historical low. It appears that people like the idea of democracy but not the reality. They love the idea, but not the result," he said.

He concluded by observing that: "Democracy is not the best form of government, but it is the least hostile of all the systems tried so far."

Former Supreme Court Justice AK Sikri said that the criticism faced by the Supreme Court of India in recent times was due to the high expectations placed with the expanding role of the courts.

He noted that PILs or over activism the judiciary indulged in was possibly responsible for all kinds of criticisms though it might have done wonders for the welfare of people. However the expectations of society had gone up as the scope of PILs were enlarged and they got to intervene in every political matter and policy decision, he said.

Justice Sikri was of the opinion that a factor influencing a negative perception of the top court may have to do with the broadened role of the Supreme Court over the years or over-activism.

"Ultimately, change in society has to come from other sources. It is not as if this is the role of the Judiciary. The question is what kind of role the judiciary should play?"  asked Justice Sikri.

"On the whole, the judiciary has been able to play the role over time as a sentinel on the qui vive. But some introspection is needed on how to go forward," he said.

Senior Advocate Indira Jaising highlighted the fact that the roster system in the Supreme Court had in recent times prioritised certain cases over others.

She referred to instances like the reluctance of the Supreme Court in hearing cases relating to the Citizenship Amendment Act (CAA), Article 370, and electoral bonds while fast-tracking certain other cases.

She pointed out that we could see the evidence of a highly self-conscious court when we look at the decisions in the Babri Masjid case,  the decision to put into cold storage cases pertaining to CAA, electoral bonds, the challenge to the abolition of Article 370 and the grant of bail to some journalists but not to others. "But, perhaps this is a charitable description. What we really have is more than one Supreme Court of India and sometimes more than one person in the personality of one judge. A pick and choose policy is what we see, perhaps the power resting with the master of the roster."

"Can we say that the judiciary succumbs to a majoritarian government? Are we seeing a threatened judiciary? Are we seeing a repeat of ADM Jabalpur, where one of the judges said that 'I have a diamond-hard hope that the State will treat its citizens in detention as its own children?"  asked Jaising.

Drawing upon the framework of individual rights against collective rights, she said, "We are yet to conclude what is the impact of the opening of the doors of the court to anyone. Now one resident of Delhi can file a PIL questioning a whole movement of farmers on the ground that he is a " tax payer" and hence has the locus to stop the protest of a whole community."

This in her opinion may have set off dangerous precedents in that an individual can claim rights to move against the collective interest.

She noted how young lawyers had come to the aid of those who have been arrested in the Delhi riots or people on social media who have been told that they are disrupting communal harmony or lawyers who are fighting so-called conspiracies in every nook and corner.

Jaising called for a change in the manner of appointing judges with one that maintains more transparency and diversity.

"I propose that applications be invited for the appointment of judges from interested people, putting on record their biodata. This, I suggest, will ensure that women, Dalits, LGBT community will all have an equal opportunity to get appointed as judges and the judiciary will reflect issues of this very diverse nation," said Jaising.

(Nilakshi Srivastava is currently studying at the National Law Institute University (NLIU), Bhopal, and is an intern with The Leaflet.)