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Scrutinising the
Supreme Court



Illustration by Uzma

The notion that judicial verdicts cannot be
questioned and debated is a false one. But care
needs to be taken not to undermine the institution

There is an uneasy feeling all round that the judiciary is sacrosanct, and that its wisdom cannot ever be questioned. This has come about because of a section of the media's brush with the judiciary, which led to contempt of court cases. As a result, the judiciary seems to inspire fear more than respect. And that is not really a good thing either for the judges or for the polity.

It is necessary to contest the verdicts delivered by the Supreme Court and other high courts, but the criticism has to be judicious and the language used in the criticism cannot be intemperate. Intellectuals in India, especially the radicals, do not seem to make a distinction between the institution and the individuals. For example, it is okay to question the individual Member of Parliament, but when one attacks the institution of the Parliament itself - as many leftist and rightist radicals tend to do - then the institution itself is undermined and that really endangers democracy. Similarly, we should disagree with the President or the Prime Minister in his or her individual capacity but it would be intellectual vandalism to attack the office as such. While criticising the Supreme Court of India, we need to keep this in mind.


The court need
not have confined itself to the evidence produced by the NBA, or that of the three state governments. It should have gone to the heart of the matter, and looked at the plight of
the people.

 
Respect for institutions is seen as a deadening, conservative virtue by young people. But it is necessary to nurture institutions by showing proper respect towards them. And there is a lot of sentiment - yes, many would disbelieve this - which is necessary to build up that thing called "mystique of the tradition." As a matter of fact, this was exactly the point that Edmund Burke - the bete noire of radicals of all ages - made about the French Revolution. He
thought that a thousand swords should have leapt from their scabbards to defend Marie Antoinette, the French queen who was supposed to have made the remark that people should eat cakes if they do not have bread. Burke was not being callous. His point was that institutions are important, something that France learnt after a century of turbulence.

So we need to respect the Supreme Court of India because it is an institution that belongs to the polity, and which needs to be nourished. But at the same time, we have to take issue with the Supreme Court's verdicts. Was the court right in believing that the three state governments - Madhya Pradesh, Gujarat and Maharashtra - have fulfilled their obligations towards the displaced people?

The majority judgement in the Narmada dam case said that the Narmada Bachao Andolan (NBA) did not produce evidence to the contrary. Even if the NBA had failed to produce the kind of evidence which could pass judicial muster, the judges ought to have asked the state governments to file reports of the actual implementation of the rehabilitation programmes.

People turn to the Supreme Court when they have a grievance against the government. The court is not only the interpreter of the law in the narrow sense of the term, but is also a guardian of the people's rights. What the court should have looked into in the Narmada dam case is not whether the letter of the Narmada Water Dispute Tribunal's verdict has been fulfilled or not.

The court need not have confined itself to the evidence produced by the NBA or that of the three state governments. It should have gone to the heart of the matter and looked at the plight of the people. The numbers involved may not be large in proportion to the billion-strong population of this country. But the judiciary is obliged to do justice to each one of them.

The court has certainly failed to show its human face in dealing with this case. There was a similar failure on the part of the court while dealing with the victims of the Bhopal gas leak tragedy involving the Union Carbide. The court could have gone beyond the legalities and used a wider "social obligation" criterion to make the callous multi-national corporation pay adequately for the damages..

The court's failure is all the more distressing because there have been times when it did provide solace and hope in certain cases, as it did to the people involved in the Bhagalpur blindings. The court had also came down quite strongly on the issue of custodial deaths.

There is a need to keep the Supreme Court under constant public scrutiny and the verdicts delivered by the highest court in the land should be debated. The only caveat is that we cannot hope to lose faith in the court even as we differ with it and oppose it on particular issues.




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