Supreme Court Imprimatur Paves Way For Smooth Sailing Of Laws And Disarms Resistance

Nishikant Dubey, the outspoken, if a trifle brash, BJP MP, launched a few days ago an intemperate attack against the Supreme Court and held it responsible for the communal flare-up in the wake of the new Waqf law passed by the Parliament. A judicial review of legislation or amendments thereto is the hallmark of any democracy and is reassuring to those feeling persecuted, especially the minorities. Far from resenting such review the ruling dispensation must welcome it and co-opt the Apex court in winning the confidence of the people, especially the minorities.

The Ram Mandir at Ayodhya, the birthplace of Bhagwan Ram, would not have seen the light of day but for the Supreme Court casting its imprimatur on the Hindu faith that he was indeed born there. The 1992 destruction of the Babri Masjid, which stood on Lord Ram’s birthplace, alienated a large section of the Muslims, and their feeling of hurt continued to simmer till the Apex court settled the issue in favour of the Hindus in 2019. The BJP government did well not to resolve the dispute through legislation, instead, it chose to bide time for a favourable court ruling. The short point is anything shoved down the throats of opposition, albeit through proper legislation, rankles and leaves a bad taste in the mouths of the opponents. But when the same thing is said by the Apex court, the opposition almost vaporises.

The Narendra Modi government banned triple talaq, which was hailed by a large section of Muslim women often at the receiving end of such a peremptory practice that has no place in a civilised society. Many of the Islamic nations have legally banned such barbarity against Muslim women. Nevertheless, a section of Indian Muslims led by its rabble-rousing males perceived the ban as interference in their personal laws. But for the Supreme Court’s prior ruling banning triple talaq, the resistance and opposition would not have abated. That people have greater faith in the Apex court rather than in the Parliament might rankle the latter, but the truth is the gowned wise men of the Apex court are regarded as fair-minded and impartial. Ditto for the repeal in 2019 of Article 370 of the Indian Constitution that carved out a special status for the state of Jammu and Kashmir, including denial of property rights in that state to those not belonging to it. Peace and prosperity, as well as tourists, returned to the state once the Supreme Court cast its imprimatur on the repeal, which of course has received a setback, hopefully temporary, by the April 22 pogrom carried out by the terrorists in Pahlgaon, a hugely popular tourist destination.

Against the above backdrop, the government should win over the Supreme Court’s approval and get its imprimatur on the new Waqf law by convincing it that it is all about property laws and not about religious faith. Once the Apex court is convinced, people, especially the Muslims, too would be.

It is not only the people who look upon the Apex court in a more favourable light. The constituent assembly, too, viewed it so by inserting Article 142 in the Constitution, arming the Apex court with the extraordinary and plenary power to do complete justice on the facts of the case, even bypassing the applicable laws. Vice President Jagdeep Dhankar, himself a learned jurist, however, holds this extraordinary power as being responsible for what he perceives as judicial intrusion and encroachment into the legislative and executive domain. In fact, the phenomenon of public interest litigation (PIL) ushered in by the former Chief Justice, PN Bhagwati, long ago stemmed out of Article 142 insofar as PILs before the Apex court are concerned. The CNG buses in Delhi to combat vehicular pollution were thanks to the public spiritedness fostered by the PIL. Article 142, once again, was responsible for doing complete justice in the Skipper Construction case, whose promoters had decamped with money paid for what today stands as Videocon Towers in Delhi’s Jhandewalan area.

To be sure, everything isn’t hunky-dory with the Indian judiciary, as indeed with the judiciary in advanced democracies elsewhere in the world. There are inordinate delays in providing justice, and orders reserved after hearing don’t see the light of day with the judge who heard it quietly fading away due to retirement. Such cases have to be heard de novo (afresh), causing further delays and imposing greater costs on the justice system. It is respectfully submitted that the Supreme Court didn’t cover itself with glory when it interpreted the term ‘consultation’ as ‘concurrence’ of the Supreme Court when it came to the appointment of the Supreme Court and High Court judges by the government in its overweening desire to oust the central government role in such appointments and make it a pure judicial prerogative. In other words, judges appointing themselves and judging themselves except when they are impeached by the Parliament, which BTW has by and large remained a dead letter, is not a healthy practice. In the US, the Senate practically appoints the Supreme Court judges after a televised interview of the appointees by it.

The recent Supreme Court verdict against the Tamil Nadu governor sitting on bills passed by the Tamil Nadu Assembly without deciding on them one way or the other or by kicking up such bills to the President has been resented by Vice President Dhankar and other BJP functionaries. What has raised their hackles is the further step taken by the Apex court in using Article 142 to direct those holding gubernatorial positions, who are themselves as much constitutional authorities as the Supreme Court, to sign or reject the bills passed by the state assemblies within three months. Perhaps the Apex court could have urged the government to amend the Constitution instead of it amending the law itself, thus stepping on the toes of the legislature.

Yes, there is a crying need for judicial reforms, but that doesn’t detract anything from the touching faith reposed by people in it. Judges, barring the black sheep, which every profession has, have earned people’s respect and faith through their legal knowledge, qualifications and fairness. A delinquent lower court is pulled up by the High Court and the High Court by the Supreme Court. In short, the judiciary comes out smelling of roses vis-à-vis legislators and politicians, which is why its imprimatur on laws made by the Parliament attains gospel status and begets compliance, though sometimes grudgingly. It would be churlish, therefore, for the legislators to be up in arms, so to speak, against the venerable institution, albeit with a few warts.

S Murlidharan is a freelance columnist and writes on economics, business, legal and taxation issues.