Justice Transmogrifies Into Another's Punishment!
C.P. Surendran :
India's Supreme Court is only as powerful as its judges. The chief justice is appointed by the president. The Indian president has no real power. Power essentially belongs to the government of the day. Often, then, the idea of justice is more likely to coincide with that of the government.
Our hope would be that the elected government is carrying out the will of the people. But what if there are people and people? One group's justice transmogrifies into another's punishment. Justice is then experienced as a principle of repression, at least to some. For long the party in power was the Congress, led by the Gandhi/Nehru family. Now it is run by the BJP - led by Narendra Modi and Amit Shah - whose mandate is Hindu majoritarian in nature.
It is hard to get away from this eventuality that has come to pass and was long in the making, and behave as if the will of the majority was an accident, and that the real deal was Nehruvian, socialist, and secular. That does not mean the majoritarian perspective is necessarily right. But it means that Indian reality has changed, and that both players and observers need to readjust their controls as they collide, like a ship and an iceberg, with the emerging Hard State.
As is clear from a spate of recent judgements, the judiciary, like the best among us lesser mortals, is driven by self-interest: they must live to die. But this is hard to perceive in the Age of Social Media where each of us in India hourly declares ourselves as a martyr and revolutionary by means of a cell phone.
The delusion that all of us could be selflessly fighting for what is right all the time is addictive. In other words, Indians no longer have a clear idea what the will of the people means in the echo chamber of their self-projections.
Last week, the Supreme Court passed judgements on the vexed, centuries-old Ayodhya-Babri Masjid issue. A majority of the voting Hindus believe the land and structure belong to their deity, Ram; the Muslims think otherwise. The Supreme Court awarded the site to Hindu deity Ram; and asked the government to hand over to a trust a separate tract of land for the construction of a mosque. While delivering the sentence, the chief justice observed that the court must respect faith and the belief of worshippers.
The chief justice has retired. The others in the queue to fill up the vacancy all were unanimous in passing the Ayodhya verdict. I mention this to merely place Indian justice in the perspective of 'legitimate' career interest. The will of the people, in this case, could perhaps be broken down to the ambitions of the court functionaries. But it will not be the entire truth.
Only days later, a petition seeking to review last year's ruling allowing entry of women - of all ages - to Sabarimala, a temple of the celibate Lord Ayyappa, in Kerala, was referred to a seven-member bench, which will now arbitrate issues relating to all religions.
The seven-member bench affords a way out for the immediate legal difficulties of the Supreme Court. But it is likely to confuse the liberal, the conservative, as well as that suffering degenerate, the Independent.
Because, if faith is to be respected, surely the faith of the minorities too need to be taken into consideration to their satisfaction? And where would a justice system that serves to appease the religious groups/identity politics get you?
In his book, The Fastidious Assassins: I rebel, therefore we exist, Camus quotes, with particular deference to the German philosopher, Max Scheler, that 'values usually represent a transition from facts to rights.'
Scheler, incidentally, coined the phrase, 'psychic contagion': a need for the individual to dissolve himself in a group, and whose defining traits are 'resentment and envy' an organising principle of the contemporary Indian Lynch Mob on the ground and in the drawing rooms. For his part, Camus finds rebellion the vehicle for these transitions. A rebellion of sorts is happening in India. Only it is often legal, as sanctioned by the court.
The Supreme Court's caveat of respecting faith will, in the near future, raise more chaos than it seeks to clear. If facts must turn into rights, group interests will be hurt against the majoritarian will. Yet there is no nuanced debate in India about what that will mean. Its Hitlerian overtones notwithstanding, India must come to terms with it; forge an understanding with what looks disconcertingly like a Unitarian future.
The 7-member Bench is entrusted with reviewing women's entry into Sabarimala. Conservative male population of Kerala does not approve of it. Which sad fact should turn to right here? Which group? The Bench will deal with female genital mutilation practice in the Borah community.
The community's stand on this issue is divided. There are writs and petitions pending in various courts against circumcision of boys from any sect, as it could be seen as an act of cruelty. Should Hindu temples be blaring religious music? Again, there is the fraught issue of Uniform Civil Code.
The Liberals approve of it. Yet, it goes against the orthodox values of stake holders. That in turn means the Liberal must both support and oppose a minority group. Which they are not adept at. And which buys into the mythology of the will of the majority.
George Orwell (Why I Write?) defines Englishness as, among other things, a fondness for flowers and red letterboxes. And order. Indianness, if there is such a thing, is nothing without a love for noise and a grand coexistence with dust.
India can't decide its collective destiny in courts. It has to be decided in Parliament. But in virtually a one-party democracy, the will of the people seems to have been already defined. So here we stand, at a crossroads of ironies. And all around there is noise and dust. Enjoy.
(C.P. Surendran, senior journalist, India)