Vinod Mubayi

It is a trope of democratic politics that toleration of dissenting opinions and the promotion of a broad vision of societal welfare are a hallmark of democracy. These goals are enshrined in democratic constitutions that function as the pillar of democratic governance.

The task of ensuring that these rights are observed is the province of the judiciary that is supposed to function as a watchdog on the legislative and executive branches of government.

In India, which describes itself as the world’s largest democracy, the judiciary is in danger of abdicating its prime function and responsibility. This process has been going on for some years, with the lower judiciary almost functioning as an arm of the police. It has accelerated, however, in the last 3-4 years particularly after Modi and BJP triumphed in the 2019 elections. The Supreme Court, which had been known to take up Public Interest Litigation (PIL) cases even in response to a mailed postcard, is now repeatedly shirking its responsibility by postponing cases that could conceivably embarrass the government. It is well over three years since a petition on the legality of electoral bonds, those opaque instruments that ensure financial donations by domestic or foreign corporates remain completely anonymous and of which BJP is by far the largest beneficiary, was brought before the Supreme Court; it has yet to receive review. Three years have also passed since Article 370 was effectively abrogated by splitting up the state of J&K into two Union Territories; the Court has yet to take that issue up as well as the many habeas petitions that were filed in wake of the unprecedented number of arrests of Kashmiris including former Chief Ministers of the erstwhile state.

In the United States of America that likes to call itself the world’s oldest democracy, the elevation of a trio of extreme right-wing judges to the highest court during the Trump administration and the decisions this right-wing majority has issued in the last month pose a crisis for the future of democratic society. Rights that were taken for granted for many decades, such as a woman’s right to control her reproductive capacity, the state’s right to restrict gun ownership, or the capacity of regulatory agencies to address existential threats such as climate change, have been struck down by a right-wing court that imperils the future of a functioning democratic society.

Supreme Court in the World’s Largest “Democracy”

More recently, and more ominously, perhaps, the Court seems to have taken on a prosecutorial role. In two cases examined below, that pertain to petitions before the court for many years, the judgments harshly chastised the petitioners and invited the state to indict them which the police promptly did.

Teesta Setalvad and R.B. Sreekumar in the Zakia Jafri Case

Last month, a bench of the Court rejected a petition filed by Teesta Setalvad in the matter of Mrs. Zakia Jafri whose husband, ex-Member Parliament Ehsan Jafri, was brutally murdered in broad daylight by a violent Hindutva mob in the Gujarat pogrom of 2002 while the police stood by and watched when Modi was the chief minister of the state. The bench severely chastised Teesta as well as R.B. Sreekumar, a retired high official of the Gujarat police, who gave testimony exposing the highest authorities of the state for their dereliction of duty in ending the violence for daring to file their petition and, in effect, called for their punishment. Retired Supreme Court Justice Madan Lokur asked “Did the Supreme Court intend or suggest that Teesta Setalvad should be arrested? Whatever your answer, the implications are horrendous” He went on to remark.” don’t you think it is tragic that the Supreme Court has taken upon itself to unilaterally decide who should be arrested and why? That is certainly not the jurisdiction of the Supreme Court, as we know it, except in the case of contempt of court. And, even in a case of contempt, the Supreme Court hears the alleged contemnor before judgment and arrest.”

It is extremely troublesome when the judiciary itself begins to persecute defenders of human rights. Teesta Setalvad has battled courageously for over two decades to bring to justice those responsible for the 2002 Gujarat pogrom in which several thousand minority Muslims were brutally killed by violent Hindutva mobs. As was reported last month, both Teesta and Sreekumar were arrested by the Gujarat police the day after the judgment was delivered and they are now struggling to get bail in the Gujarat courts.

Adivasis in the State of Chhattisgarh

The next example is more outrageous. On July 14, while passing judgment on a petition filed by Himanshu Kumar, a Gandhian who runs an NGO in Chhattisgarh, and 12 other persons that called for an independent investigation in a 2009 case of extra judicial killing of Adivasis in the state of Chhattisgarh, the Court not only imposed a penalty of Rs. 5 lakhs on Mr Kumar; it accused him of “hatching a criminal conspiracy” to defame the security forces and invited the police to take action against him and the others. Human rights and other civil society organizations in Chhattisgarh strongly criticized this judgment when they noted: “We, the civil society organizations and people associated with the Human Rights movement in Chhattisgarh are alarmed to note that this judgment has virtually made the pursuit of justice in a judicial court a criminal act itself. This judgment is a threat to the very existence of human rights advocacy and systems of accountability from the Police and Security Forces in Chhattisgarh, especially Bastar.”

A statement issued by the Chhattisgarh Bachao Andolan [CBA, Save Chhattisgarh Movement] reported by South Asia Citizens Wire of July 22. notes that the 2009 killings of Adivasis “came to be known as the Gompad massacre, and it includes two major incidents of violence in September and October 2009 that happened in the villages of Gompad and Gachchanpalli along with 2-3 smaller incidents nearby, in which at least 17 adivasis were killed.” The CBA statement indicates that Himanshu Kumar has lived and worked in the Bastar region for over three decades and has “consistently helped in bringing out the human rights violations against the Adivasi people of Bastar to light. The other twelve petitioners, in this case, are family members of the people killed in the Gompad massacre.”

It is well-known that the Bastar area has been the center of violence between the Maoist Naxalites and the security forces comprised of police and paramilitary forces that has led to the native Adivasi people getting caught up in the violence. In numerous cases, the security forces of the state have been credibly accused of human rights violations in investigations conducted by official bodies such as the National Human Rights Commission which corroborated villagers accounts of incidents of sexual abuses and assaults perpetrated on Adivasis by special police officers and members of the COBRA unit of the Central Reserve Police Force. The CBA statement emphasizes that “this judgment turns the principle of natural justice on its head …by rejecting the plea for an independent investigation into the Gompad massacre, and harshly penalizing the lead petitioner, this judgment sets back the right to demand a fair and unbiased investigation and refuses to acknowledge the reality of state violence. We are distressed to note that the vicious circle of incarcerating Adivasi persons for being Naxals and persecuting human rights activists as Naxal sympathizers by the State Police continues unabated till date in Bastar.” Imploring the Supreme Court to take back its judgment, CBA has put forward three demands as follows:”As people committed to the ideals of peace, justice, and truth, we demand the following: 1. Having made peace and justice in Bastar a central plank in their election campaign, the Congress government should reopen the investigation into the Gompad Massacre, and conduct it with fairness and objectivity. 2. No coercive action should be taken against Himanshu Kumar or any of the other petitioners, who are well within their rights to seek redress from a Constitutional Court in such serious matters. 3. We urge the Hon’ble Supreme Court to expand the principle of Accountability jurisprudence and equal treatment under the law with respect to officers of the state not acting in good faith.”

Another distinguished legal commentator has described the Supreme Court judgment in the Himanshu Kumar and Others case as “by far, the most chilling event… whereby, not only has the Petitioner No 1 been fined, but the State of Chhattisgarh/ CBI have been explicitly permitted to charge him with perjury and criminal conspiracy. It appears that the Court believes that he has been unable to prove his case against the State. In this Petition, Himanshu Kumar and the family members of 7 deceased adivasis had approached the Supreme Court to set up a Special Investigation Team to probe into the events of 1st October 2009 in Village Gompad, district Dantewada, during which these adivasis had been killed.” He indicated that “Only recently, in 2019, the VK Agrawal Judicial Enquiry Commission has indicted the security forces for killing 17 villagers including 7 minors in the village of Sarkeguda, district Bijapur, Chhattisgarh in the year 2012. Of course, so far, no action has been taken against the officers concerned. In a situation where ordinary Adivasi villagers can so easily be incarcerated or even encountered as a Maoist, the mere thought that they should be cautious even to approach the highest Constitutional Court of this land in the uphill fight for justice, speaks volumes”.

Demolitions Of minority Muslim-owned homes and businesses

The demolitions of minority Muslim owned modest homes and shops by bulldozers sent by local authorities and the inability of the courts to stop these blatantly illegal acts is another instance of the way the court is unwilling to confront a vindictive majoritarian state. The usual pattern has been that a conflict erupts between a Hindutva mob and some local residents in a Muslim neighborhood, the police arrest some Muslim men and the municipal or other local authorities send in bulldozers to demolish the modest shops or homes or even pushcarts of the Muslim community, thus destroying not only where they live but also their livelihood. Now these demolitions have escalated to the homes of middle or even upper-class Muslims who can be accused of having been involved in some act of protest against the ruling dispensation. These vicious acts are justified on some bureaucratic ground or the other: viz. the demolished structures lacked proper building permits or were constructed illegally or obstruct traffic, etc. The courts’ standard practice, in response, seems to have become one of evasion and omission when confronted with some outrageous and illegal act by state authorities.

It is worth quoting at length from the June 13, 2022 blog of the distinguished legal analyst Gautam Bhatia on this practice of the Indian judiciary:

“Ongoing proceedings before the Supreme Court pertaining to the spate of home demolitions, which have been carried out across the country by municipal authorities, present a striking example of how judges can continuously reject the evidence of their eyes and ears. These proceedings follow a similar pattern: it is pointed out to the court that the home demolitions – which have now been going on in sporadic fashion for many months – are punitive, and designed to extract retribution for participation in protests. State counsel argue that the municipal authorities are acting in accordance with local laws. The Supreme Court bench – it tends to change – makes a rhetorical statement about how demolitions must follow legal process, makes another rhetorical statement about how it can’t pass “omnibus” orders against the demolitions, and then adjourns the case (while the demolitions continue).

In continuously refusing to take cognizance of the fact that the home demolitions are punitive and illegal, and follow the same pattern across the country, these Supreme Court judges reject the evidence of their eyes and ears. They manage to ignore the fact that, coincidentally, the home demolitions in question come immediately upon the heels of a protest that turns violent, time after time, and are specifically targeted against people who are named by the police in FIRs about rioting, time after time; that in Uttar Pradesh, Javed Mohammad’s home was demolished one day after the UP Police claimed that he was the “mastermind” behind the June 10 riots, and that in Khargone (MP), Khambhat (Gujarat), Nagaon (Assam), Jahangirpuri (Delhi) and in other places, the exact same pattern is followed (indeed, in Jahangirpuri, demolitions swiftly followed a letter from the BJP leader to the Mayor, asking for bulldozer action against “illegal properties of the rioters”).

Not only that, these Supreme Court judges reject the evidence of their eyes and ears where the punitive character is laid bare by agents of the State.

Examples could be multiplied, but what is abundantly clear is the two-faced character of the State. To maintain the veneer of legality, in its formal orders, the State claims that the demolitions are following due process, and the action has nothing to do with retribution. These are the arguments that the State’s counsel then makes in Court. Quite apart from the fact that these arguments fail on their own terms, the basic point is this: the only way that you can accept the State’s arguments is if you choose to reject the evidence of your eyes and ears, not once, not twice, but every single time that State agents engage in targeted demolitions after protests, publicly brag about “teaching the rioters a lesson”, and then send their lawyers to argue in Court that the demolitions have nothing to do with the protests.

However, having taken on this power to do substantive justice, the court’s refusal to use it in a case where the violation of the rule of law is clear and unambiguous, is a choice from which it cannot escape responsibility. The court’s bland, oral observations about “omnibus orders” and “following the law”, and its continued kicking of the can down the road while the demolitions continue, allows this two-faced State action to continue with impunity.”

Supreme Court in the World’s Oldest Democracy

In three stunningly regressive decisions handed down within a week, the US Supreme Court, now dominated by a solid right-wing majority, upended half a century of legal precedent in striking down Roe v. Wade that legalized abortion, and abolished a century old New York law that prohibited concealed carry of guns by individuals without a license. Not content with this wreckage, the same right-wing majority then proceeded to deny regulatory authority to the Environmental Protection Agency (EPA) to restrict the emissions of greenhouse gases from power plants that impact climate change and threaten human survival. What is revealing is that the elevation of these right-wingers, whose views on social issues appear to parallel those of the average member of the Tea Party, to lifetime appointments on a Court whose decisions affect the life and livelihoods of millions was accomplished through a “democratic” process when both the Administration and the Senate were under Republican control.

Roe v. Wade

For several decades, Roe v. Wade, the case that established a woman’s right to control her reproductive capacity and legalized abortion, stood as settled jurisprudence. When several of these justices were asked during their Senate confirmation hearing about Roe all of them without fail referred to it as “stare decisis” – legal jargon for the notion of judicial precedent – implying that future decisions on the same issue should follow established law. They were clearly lying then as revealed by their current votes but do not seem to be in danger of suffering any consequences.

Making abortion illegal at the federal level and leaving it to each state to enact its own laws not only puts the US under a patriarchal theological shroud – it is not surprising that five of the six judges who voted to strike down Roe are practicing Catholics whose bishops have designated abortion as a mortal sin – it also ignores and trashes the beliefs of a majority of Americans who have consistently been in favor of maintaining a right to abortion as shown by polls over the last several decades. The same right-wing majority does not seem to believe much in the separation of church and state either. In another case, they reinstated a high school football coach who had been fired by the school administration because he insisted on holding religious prayers on the field after each game. The outlawing of Roe v Wade is not likely to materially affect well-off upper-class women living in states like Texas or Louisiana who wish to exercise their choice – they can always travel to a state where abortion is legal. As in all social matters in the US, the burden will fall most heavily on the poor, those least able to afford travel out of state. The very recent travails of a 10-year-old rape victim who had to be surreptitiously taken out of state to procure an abortion are a premonition of the horrors to come in future.

Second Amendment and Gun Rights

In another case, the same group of right-wing judges overturned a century old law in New York state that had made concealed carry of guns illegal without a permit from the state. One doesn’t expect well-reasoned logic from right-wing ideologues even if they happen to be Supreme Court justices, but Justice Alito, who wrote both the Roe and the New York gun permit judgments should have reflected on the inconsistency of his arguments. In Roe he could find no federal right in the Constitution to a woman’s right to make decisions about her body, that right was up to the states alone who could make whatever law they chose on the issue. In the New York gun rights case, however, the state’s right to regulate gun ownership that had stood for over a century was summarily discarded due to the decade old mangled reading of the constitutional second amendment.

The Second Amendment consists of just one sentence: “A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” An individual constitutional right to own a gun is valid only if the first thirteen words of the second amendment are erased. A commentator remarked that “Gun-lovers, like the Supreme Court justices who hide behind it to justify “the right to keep and bear arms” criminally ignore the demand with which the Amendment’s author, James Madison, began: “A well-regulated militia, being necessary to the security of a free state.” The bar is clear: if you are a member of an armed unit that is being “well-regulated” by the community, and if your gun ownership can be proven to serve “the security of a free state,” then under the rubric of the Second Amendment, you have a right to own a gun. But if you cannot meet those two qualifications, you do NOT.”

Historians have cogently argued that the so-called Second Amendment right to individual gun ownership existed largely in the minds and the propaganda of the gun lobby, principally the National Rifle Association (NRA) alongside gun manufacturers until the Supreme Court decision in 2008 authored by another right-wing pro-gun Justice, Scalia, that overturned the restrictions of the District of Columbia on private gun ownership inside a home. In fact, as late as 1990 the conservative Chief Justice Warren Burger is reported to have said on PBS that the second amendment did not confer any “right” of individual gun ownership.

The origins of the US as a settler-colonial state likely explain the origins of this amendment. While Militias at the state level played a role in the colonists’ war of independence against the British crown, the arming of militias was also a means to capture runaway slaves and slaughter the native Americans to displace them from their territories, a practice that continued long after the constitution was adopted. Those times are long gone. The founders of the nation, one legal analyst wrote, “would be horrified to learn that their words are now being used to establish a “right” of psychotic teenagers and other mass murderers to walk into any gun shop, buy an automatic weapon, then slaughter school children, teachers, doctors, hospital staff, co-workers, ex-spouses and lovers or anyone else that might randomly come into their mind…The cynical use of the Second Amendment to justify the never-ending slaughter we now endure is a Constitutional abomination, full of lethal irony.”

Climate Change and the EPA

Another example of the hugely destructive societal impact of US Supreme Court decisions is the judgment in the case West Virginia vs EPA that denied the EPA’s ability to restrict the emissions of carbon dioxide, a greenhouse gas, from power stations. The most notable feature of this decision is its extreme perversity. The Supreme Court sided with West Virginia, a major coal mining state and argued that EPA bureaucrats, who should be called technocrats presumably appointed for their expertise in the matter, should not be allowed to reshape its economy by limiting pollution from its power plants. According to the opinion written by the Chief Justice such a decision should have been made by the US Congress, with the full knowledge that the US Senate is split 50-50 with almost all Republicans (and also, perhaps, a Democrat or two) being staunch denialists of climate change, greenhouse gases, or any other scientific fact that could negatively impact the profits of the oil, gas, and coal industries so the chance they would act to curb even a future existential threat to humanity is vanishingly small.

George Monbiot, the well-known environmental journalist, wrote in the Guardian newspaper of July 6 “In the US last week, the third perverse and highly partisan supreme court decision in a few days made American efforts to prevent climate breakdown almost impossible… Just at the point at which we need a coordinated global effort to escape our existential crises – climate breakdown, ecological breakdown, the rising tide of synthetic chemicals, a gathering global food emergency – those who wield power string razor wire across the exit… the US supreme court look[s] as if they are willing the destruction of our life support systems… By seizing control of regulatory power, it sets a precedent that could stymie almost any democratic decision.”

A Harvard law school professor wrote of this decision that “To an unaccountable tribunal of life-tenured, ideologically inclined justices, no doctrine presents an enforceable barrier to impulses of the most blatantly partisan variety.”

In conclusion, these few examples illustrate the fragility of democracy, when the judiciary fails to curb the excesses of the executive or ideologues become judges and interpret the law to diminish human freedom or make it impossible for regulatory agencies to protect the health and safety of citizens.

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