Aakar Patel | Courts, even SC, shouldn’t be the only place to go to secure rights

One of our Supreme Court judges made an important, if startling, point when delivering a lecture abroad. A legal website reporting his speech gave this headline to the story: “Will result in slippery slope if courts are regarded as only organ to defend citizens’ rights”.

The judge (I am not naming the person because the identity is unimportant, it is the idea that we must try and understand) was quoted as saying that “the growing litigious trend in the country is indicative of the lack of patience in political discourse. This result is a slippery slope where the courts are regarded as the only organ of the State for the realisation of rights — obviating the need for continuous engagement with the legislature and the executive”.

The words are clear enough and direct enough, so what do they mean? The judge is saying that it is important that citizens engage with the government and the elected representatives for their rights. The courts are also important in this process, but they are not the only place where citizens’ rights can be defended or claimed.

This is actually how many democracies function and the justice system, and in particular the Supreme Court, is only one part of the edifice that the citizen engages with. In the United States, the Supreme Court hears and disposes of only 80 cases a year. In India, the Supreme Court has 70,000 pending matters. This points to a significant difference between the two justice systems, though ours is modelled in many ways on the American system.

In 1949, it was decided that India would have a Supreme Court that consisted of no more than eight judges (Article 124). The United States has nine. India today has over 30. The highest US court only hears all matters before it together. India’s top court has several small benches that hear everything, from bail matters to property disputes. In the US, such matters are settled by the lower judiciary. In India, for reasons we do not need to get into today, this does not happen and so the justice system has had to evolve into something different from the way it was originally conceived.

Let us leave this aside and look again at what was said by the judge. Despite the justice system in India being heavily engaged with the citizen, at least according to the numbers, the judge feels that there is a “growing” trend towards more litigation and not enough engagement with the political process. To my mind, this is the correct analysis. The question is why this is happening.

The answer appears to be that the State in India is running amok. If the government and the political party controlling it want to destroy the homes of people without trial or conviction, where do those people go? One place that they can go is the executive, which is the perpetrator of all such violence. They can also go to the legislature, meaning the Opposition parties, to engage with them and make the government see reason. Is this not happening in India today? Certainly, it cannot be the case that people who are moving court, including citizens, civil society groups, activists and so on, are not engaging with the government at all. They are. But what is to be done when the motivation of the political party in charge is to persecute? How does one engage meaningfully with one’s oppressor? This is what the judge did not speak on. Something else was said in the speech, which justified the widening of spaces where rights must be sought. The judge said: “While the Supreme Court must protect the fundamental rights of citizens, it must not transcend its role by deciding issues requiring the involvement of elected representatives. Doing so would not only be a deviation from the court’s constitutional role but would not serve a democratic society, which at its core must resolve issues through public deliberation, discourse and the engagement of citizens with their representatives and the Constitution”.

There is nothing exceptionable about what is said. Healthy democracies must have citizens able to conduct meaningful and productive engagements with all parts of the State. However, it must be stressed here that the judiciary has a primary function, and that is to stop and push back against any kind of executive overreach. Especially when such overreach is threatening the Constitution of India itself.

Today, the situation is that cases involving citizenship and anonymous funding of electoral politics have not been decided by the highest court. The habeas corpus pleas of people living in Kashmiris have also gone undecided. This is the source of the pressure that commentators and activists have put on the judiciary, which is what the judge was presumably responding to. To many of us it seems like India has taken a direction led by the government controlled by a single political party, led by an undisputed leader. This direction is not in keeping with either the Constitution of India, or traditions or modernity. Of course, the rest of the State apparatus, including the legislatures and the executive, must be places where the citizen can go and claim his or her rights. But it appears to be indisputable that the primary arena of this battle has to be in the justice system, where the judges must stand up for citizens against a rampant and malign State.