Judiciary remains the last sentinel of democracy


Supreme Court by ShailendraThree substantive judgements — triple talaq being abolished; the Right to Privacy (R2P) being established as a fundamental right delivered by the Supreme Court and the conviction and sentencing of notorious godman Gurpreet Ram Rahim Singh in a rape case by a Special CBI Court — prove that the judiciary in India is the last sentinel of the Constitution, a task which is required to be equally shared by other two wings of the government, executive and legislature and inability of these two wings to do so paves way for the judiciary to step in. Apart from stirring public debate on contentious issues, these verdicts entail massive significance as they deliver strong messages and have far-reaching consequences.

Triple Talaq judgement

The five-judge Constitution bench of the Supreme Court has struck down the practice of instant triple talaq on the basis that it isn’t an integral part of Islam and thus doesn’t come under the ambit of the constitutional right to freedom of religion. This judgement came in response to petitions filed by some Muslim women who have been let down by a culture heavily influenced by patriarchy and misogyny. While putting an end to the long-drawn battle over triple talaq, the Supreme Court has declared it as unconstitutional and banned it for six months, hoping Parliament would pass a law by then. Some experts opine that the apex court has wisely set a time limit and resisted the temptation to create a law itself, which is not its job. The judgment provides relief to Muslim women fighting for equality.

However, one expert has pointed out that the apex court perused the matter through the prism of religion rather than that of the Indian Constitution and that the verdict would have been more progressive had the top court decided the issue on the basis of constitutional provisions only rather than interpretation of religious texts. This raises the question as to whether or notabsurd practices that contradict the fundamental right to equality and result in the exploitation and abuse of a particular segment of a community be permitted in the name of religious freedom in a nation governed by the rule of law. In this case the judiciary, while acting within its constitutional jurisdiction, left the space for executive to act accordingly through legislature.

Verdict on R2P

Right to Privacy (R2P) has been declared as intrinsic part of life under Article 21 and a part of the freedoms guaranteed by Part III of the Constitution by the nine-judge bench of the Supreme Court. Some experts aver that the apex court, via this verdict, has also performed its constitutional role of checking on the powers of the executive and the legislature. Undoubtedly, union executive through its Attorney General had reportedly argued that privacy as a right has greater credibility in jurisdictions that are socially, politically and economically developed and the description may not necessarily be applicable to India, nevertheless, the apex court disagreed with this plea.

According to one expert, through this verdict, the apex court has tried to protect citizens from governments of the present and the future with autocratic tendencies especially considering that such susceptibility has been found in past governments as well as in the current dispensation, by overruling its own two previous judgements that allowed the government to infringe on an individual’s privacy for the purposes of carrying of surveillance, searches and seizures. This verdict also safeguardscitizens against violations of privacy that could be carried out with increasing dependence on the digital world, especially the digital economy and information systems.

Some experts opine that by delivering this verdict on Right to Privacy, the apex court has not intruded the jurisdiction of legislature because this verdict cautions that the judicial recognition of the existence of a constitutional right of privacy is not an exercise in the nature of amending the Constitution nor is the Court embarking on a constitutional function of that nature which is entrusted to Parliament. The Parliament has to perform its constitutional obligation of making a law on this vital pointand that such a law if made should not encroach upon privacy, and if it does it has to withstand the touchstone of permissible restrictions on fundamental rights.

Decision on ‘godman’

The conviction of Gurmeet Ram Rahim Singh, head of theSirsa-headquartered Dera Sacha Sauda sect, by the Special CBI court in Rohtak, on having been found guilty of raping two young women fifteen years after the complaint was filed, sendsa much-needed warning for self-styled godmen who are often corrupted by power and wealth and end up exploiting their gullible followers. According to one opinion, this case reminds the case of Asaram who was once highly revered as a ‘saint’ and is now languishing in jail for sexually assaulting a minor girl.The judicial intervention by the High Court of Punjab and Haryana was necessitated by the inability of the Haryana Government to take precautionary measures of maintaining law and order beforehand.

The Punjab & Haryana High Court took chief minister of Haryana state to task for taking no preventive action in the wake of reports that weapons and ammunition were being stored at Dera premises for a week before the judgement was scheduled to be pronounced and despite being aware of the mass mobilisation of people with the intent of generating trouble in the event of an unfavourable verdict. High Court’s apprehensions proved right in the wake of incidents of violence and hooliganism in Punjab, Haryana and parts of the adjoining states which occurred soon after Gurmeet Singh’s conviction was pronounced and it pointed to the sheer lack of regard for the rule of law.

It was only after the strong rebuke by the three-judge bench of the Punjab and Haryana High Court to the Central and Haryana governments, where the bench had to remind the PM and state chief minister of their duties towards the nation that coercive action was taken against the trouble-makers and violence was finally brought under control. The judiciary’s proactive role not only reinstalled the faith of the common man in the criminal justice system but it also played the vigilant role by monitoring the case closely to remind the state executive of its inactive role.

Way forward

According to one expert, among the many prospects and consequences of these three milestone verdicts by the judiciary, an important implication is that they have stirred public debate on various contentious issues such as women’s rights, government’s responsibilities and the kinship between religion and politics. They have also once again established the significance of a strong and bold judiciary in saving democracy from the whims and fancies of an overconfident government.

Parliamentary democracy can function smoothly and effectively only when all organs of the government, including the media, discharge their respective constitutionally mandated functions diligently without intruding upon each other’s jurisdiction.

Inactive role on the part of one can prompt the other to become proactive within the means of Constitution thereby entailing the potential of generating constitutional impasse, which is not in the interest of successful functioning of parliamentary democracy that demands keeping such a situation at bay.