The judiciary alone cannot take forward the mission of deepening democracy and protecting social freedoms
Unless… philosophers become kings in the cities… there can be no cessation of evils… for cities nor, I think, for the human race . — Plato, The Republic After the slew of verdicts by the Supreme Court, on triple talaq, Section 377, adultery, and the Sabarimala temple, a prominent cartoonist adapted the famous “Road to Homo Sapiens” picture to depict the Supreme Court Justice as a barber who cleans up the barbarous Neanderthal to make him a modern human. India, at present, is going through a deep crisis in which the mission of deepening democracy, and protecting and advancing social freedoms is placed solely upon the judiciary. On the one hand there is a complete abnegation of the role of the legislature, and on the other there is a dichotomy between social morality and judicial morality (itself an interpretation of constitutional morality).
Both are dangerous tendencies.
The Supreme Court verdicts have curiously become a spectator sport on primetime television with a great amount of anticipation about the judgments in pending cases. The same curiosity is missing about parliamentary bills/debates, which are absolutely vital to a parliamentary democracy.One example would suffice. Earlier this year, the government amended the Foreign Contribution Regulation Act to retrospectively legalise political donations from foreign companies and individuals since 1976. This move — with potentially catastrophic ramifications for Indian democracy — was pushed through without discussion in Parliament and hardly any debate in the public sphere.The abdication of responsibility by the legislature is even more damaging considering that the judiciary is groaning under the weight of a mammoth 3.3 crore pending cases. The backlog of cases in the High Courts and the Supreme Court is 43 lakh and 57,987, respectively. What could be more unjust in a democracy than thousands of innocent undertrials languishing in jails for a lifetime awaiting justice? A staggering 67% of India’s prison population awaits trial; 55% of these undertrials are Dalits, tribals, and Muslims. In this context, should the valuable time of the judiciary be spent in entertaining and delivering verdicts on Public Interest Litigations (PILs), seeking, to take a couple of instances, a ban on pornography or making the national anthem mandatory in cinema halls? The PIL, a unique and powerful tool to seek justice for the weakest sections, has now degenerated. Witness the recent example of one having been filed seeking segregated seats for vegetarian and non-vegetarian passengers in trains. Overworked courts cannot become a one-stop solution for performing legislative/executive tasks such as banning fire crackers/loud speakers, enforcing seat belt/helmet wearing rules, or solving theological/civil society questions such as what the essence of Hinduism is or whether a mosque is integral for namaz (going beyond whether religious practices violate constitutional norms). The process of abolishing religious or secular hierarchies/injustices cannot become deep-rooted if it is merely judicial or legal. Take the Supreme Court’s recent directive urging new legislation to curb lynching. Politically-motivated lynchings targeting a community do not happen because of the absence of laws. They happen because of a wilful subversion of laws by the executive backed by mobs riding on electoral majorities. That is why the head of India’s most populous and politically crucial State can declare publicly that he is proud of the demolition of Babri Masjid. Yet, the irony of democracy is such that the task of completing the world’s largest democracy’s political and social revolution cannot be laid only at the doorstep of the wise men and women in robes.