Pulling the judiciary towards the Constitution is not browbeating, pushing it away is

Indira Jaising explains the root of the new tug-of-war between lawyers defending human rights and those endorsing cultural nationalism as a supra-constitutional norm.

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HISTORIANS have documented the prominent role played by lawyers in the movement for India's Independence from the British.

M.K. Gandhi, Jawaharlal Nehru and Vallabhbhai Patel (to whom the Statue of Unity is dedicated) were all lawyers— and there were many more. Dr B.R. Ambedkar, himself a lawyer, was the chief draftsman of the Constitution we live under today.

This was no accident. As a class, lawyers share a natural affinity with a society living under the rule of law which the Constitution brings into force. Today's lawyers have inherited this legacy of activism from those who led the freedom movement.

The separation of powers adopted by the Constitution is an article of faith in a liberal democracy. Judicial review is also a basic feature of the Constitution and the judiciary is expected to exercise checks and balances when the rights of citizens are challenged because of executive overreach.

The Constitution of India is unique in the world in permitting direct access to the Supreme Court when fundamental rights are violated. As the Chief Justice of India has pointed out recently, access to the Supreme Court is available to all, no matter how big or small the cause. Therefore, when lawyers see these doors open to some and closed to others, it is normal for them to protest.

A recent letter written by 600 lawyers raises the issue of the legitimate role of the judiciary and the legal profession in a society governed by the rule of law.

At the root of this issue lies the question: After more than 75 years of Independence, are we really a society living under the rule of law?

Many political analysts have pointed to the democratic deficit in our country. They present a strong suit of evidence. The violence against minorities, whose most visible manifestations are mob lynching, but the more insidious forms are the gradual and systematic marginalisation of minority communities in India.

There are the severe attacks against opposition political parties and the use of State agencies, including the Directorate of Enforcement, the Central Bureau of Investigation and the National Investigation Agency as well as laws such as the Unlawful Activities Prevention Act, 1967, the Prevention of Money Laundering Act, 2002 and the Prevention of Corruption Act, 1988, selectively and disproportionately against the opposition.

Then there is the voluntary decline in the independence of a section of the media, and the arrest and incarceration of human rights activists, who languish in jail for a good part of their young lives with no hope of seeing the light at the end of the tunnel.

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The defence of the Constitution is one of the main challenges we face in our public lives. The liberal constitution that we have is being ignored by ruling parties and replaced by a norm considered higher than the Constitution itself— namely cultural nationalism— as the governing norm of the country.

In the issue of same-sex marriage, the Supreme Court also relied on custom to justify its decision of not legalising same-sex marriages on the basis that same-sex relationships are opposed to Indian culture, disregarding the fact that Section 377 of the Indian Penal Code was a colonial import.

Ironically, the three new criminal laws are a rehash of our existing criminal laws, framed by colonial masters, only worse in terms of suppressing human rights.

Unfortunately, this approach to law is seeping into all corners of the judiciary. Recently, a family court held that it is the duty of a married Hindu woman to wear sindoor.

The High Court of Madhya Pradesh, while refusing relief to a couple seeking police protection from violence, is reported to have said "that even though certain rights have been conferred by the Constitution it is not necessary to enjoy, and enforce them as well".

If this is indeed the case, why do we have Article 226 or Article 32 in the Constitution at all, which Dr Ambedkar considered the "soul" of the Constitution?

Is it discretionary for the court to enforce our fundamental rights as and when they please? Is this the new constitutionalism that the letter-writers are seeking to establish in India?

The letter of the 600 lawyers must be seen in the context of competing views of constitutionalism in the country, those who believe that human rights are not negotiable under any circumstances and those who believe that liberalism is a colonial import and must be rejected. The role of lawyers in raising human rights issues depends on which view you take.

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Each time this independence has been under threat, it is the legal profession that has risen to the occasion and ensured that the judiciary remained insulated from partisan politics.

The attempt by the National Democratic Alliance (NDA) government to introduce a dominant voice in the appointment of judges was opposed successfully by the legal profession.

It was the late Fali Nariman, described as "the conscience of the nation", who represented the legal profession and the law was struck down for being an Act intended to interfere with the independence of the judiciary.

Therefore, when lawyers notice that there are other ways in which the independence of the judiciary can be undermined, it is natural for them to protest the distortions they see in the system.

It is in this context that the letter by the 600 lawyers, led by prominent lawyer Harish Salve, now residing in London, must be seen. They see these voices among us as "browbeating" of the judiciary and an attempt to pressurise the judiciary to decide in a certain way.

This is trivialisation of the main issue raised by some of us— of the independence of the judiciary being in jeopardy.

The letter attained even more weight when it found endorsement by no less than the Prime Minister of India, who ironically saw the alleged browbeating of the judiciary as a move by the Indian National Congress (INC)— an obvious synecdoche for one of the equally prominent lawyers who appeared in the electoral bonds case and was a former member of the INC.

The fact is that we, who speak for the independence of the judiciary, speak on our own behalf, whereas the letter writers appear to be surrogates for a powerful ruling party trying to silence dissenting voices.

There is also a recent endorsement of the letter-writers by the Vice President of India (incidentally, also a former member of the INC) who now brands human rights lawyers and champions as "anti-national" for raising an alarm over the threat to the independence of the judiciary.

In truth, the letter is more an attack on the judiciary and human rights lawyers are only the collateral damage.

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India's Constitution was drafted at a time when the Universal Declaration of Human Rights was in place and our civil and political rights reflect the genius of that document to which all civilised nations of the world have subscribed. This is why we call ourselves a democracy, indeed "the mother of democracy".

When it comes to "selective outrage" over individual decisions of the court, obviously support will depend on the constitutionality of the decision.

Human rights lawyers have always called out the judiciary when its judgments compromise on the life and liberty of citizens and non-citizens alike, regardless of their political affiliation.

The judiciary is also conscious of its own blunders and welcomes constructive criticism. It was no less than the current Chief Justice of India who overruled the decision of the court in ADM Jabalpur in the Puttaswamy case.

The letter writers are also aggrieved by the use of the media by human rights activists. Let us not forget that the media is meant to be an important pillar of accountability of those in power, including the judiciary, and its use must be encouraged. Moreover, no one has more access to the media than the letter writers.

An independent Bar is a precondition to an independent judiciary. Lawyers know the significance of the Constitution and the role of the legal profession in defending it.

Today, when we see the leaders of the Bar praise Prime Ministers at every opportunity they get, it is also the independence of the Bar that is under threat.

As we head into an election of the nation and also an election of the leader of the Supreme Court Bar Association, lawyers must think carefully about who they want as their leader.

In a polarised society, where much depends on the ability of the courts to defend the Constitution, it is normal for the ruling party to seek allies in the legal profession and they have found them in the letter-writers.

A shorter version of this piece was published in the Indian Express.