Constitutional Solidarity

The Constituent Assembly had framed with idealism the provisions related to the Judiciary. The Courts were idealized as the guardian of the Constitution. In his classic book “Indian Constitution: Cornerstone of a Nation” (p. 205), Granville Austin highlighted the importance that the constitution makers had placed on the judiciary: “The Assembly went to great lengths to ensure that the courts would be independent, devoting more hours of debate to ensure that this subject than to almost any other aspect of the provisions. If the beacon of the judiciary was to remain bright, the courts must be above reproach, free from coercion and from political influence.”

70 years after independence, the expectation still continues. Judiciary remains one of the last institutions in which people of India have ultimate faith. However, this faith seems to be getting affected. Credibility is the foremost parameter on which any institution can survive. While the year 2017 is coming towards comes to an end, it marked two unexpected incidents within the judiciary which have definitely affected its credibility- first, the way Justice (Retd.) CS Karnan’s case was handled; and, second, the controversy around medical college scam, which divided both the bar and the bench. These two incidents created a feeling of unease in the minds of those who consider the judiciary as the custodian of the Constitution. The publicity generated by these incidents has perhaps made a dent in the image of the judiciary.

While Justice Karnan was sentenced to 6 months imprisonment by the use of power of contempt of court, a perusal of the order holding him guilty of contempt reflects that the top judges of the Supreme Court failed to offer a closure to the issue. Though Justice Karnan definitely lowered the dignity of the judiciary, but the way this case was dealt with by the Supreme Court, including its order of subjecting Justice Karnan to a medical test without his consent, has been “fraught with serious improprieties”. The case has once again brought into limelight the unavailability of an in-house disciplinary mechanism to deal with errant judges. The apex court seems to have taken a wrong turn, as the mode of treatment meted out to Justice Karnan created a sense of sympathy for him in certain quarters of society.

The controversy around the medical college scam case presents lack of faith by the judges and lawyers among each other. The controversy revolves around following events: the attempt of the petitioners to get the matter listed before a particular Bench; the order constituting a particular Bench passed by second senior-most judge thus violating judicial protocol that only the Chief Justice allots roster; and the subsequent reaction of the head of the Indian judiciary overturning the order passed by second senior most judge without taking into confidence the senior-most judges of the Supreme Court. These events violated the spirit of institutional credibility of India’s highest court of justice. The clash not only between the two top-most judges of the apex court but also between the office bearers of Supreme Court Bar Association and the petitioner’s lawyers, certainly damaged the reputation of both the Bench and the Bar. Had the top judges of the Supreme Court (including the Chief Justice) dealt with this controversy, it would have sent the right message to everyone. The head of the Indian judiciary dealt with the matter by constituting a Bench of his choice, thus heightening the controversy.

The above discussed controversies have demonstrated that judicial infallibility is a myth. They have brought out the weakness of our apex court in handling delicate situations. In incidents as such, the sufferer is not only the judiciary, but the entire nation. The people of India have the highest respect for the judiciary and are therefore concerned with its integrity and credibility. Judiciary will be able to protect people’s faith in itself only when it preserves its integrity.

Judges are a pillar of Indian democracy. The framers of India’s constitution had passed the beacon of protecting the basic rights of India’s population to the judiciary. Courts are the ultimate shelters for citizens for redressal of their rights from arbitrary and unlawful actions. This puts the highest level of rectitude both on the Bar and the Bench.

In his recent book “Sense and Solidarity” (2017), Jean Dreze has placed public-spiritedness and ethics as a medium to build social institutions. He has considered public-spiritedness as a step towards solidarity (alias fraternity). Dreze invoked the last address of Dr. BR Ambedkar to the Constituent Assembly (25 November 1949), where he had explained the meaning of fraternity in following words: “Fraternity means a sense of common brotherhood of all Indians – of Indians being one people. It is the principle which gives unity and solidarity to social life”.

Considering the above contemplations in the context of current discussion, an institution is preserved from the contribution of all the stakeholders. Solidarity makes an institution. Solidarity among the members of the Constituent Assembly had brought out India’s Constitution. This solidarity is still needed to protect it. A sense of confidence in the courts is essential to maintain the Indian social fabric. Therefore, a sense of faith and belief in each other by the members of the Bar and the Bench, particularly in the judges among themselves, can only bring out what is desired from the institution of justice. In this way, taking each other into confidence, so as to work with the commitment to preserve the integrity and credibility of the judiciary, constitutes constitutional solidarity. Constitutional solidarity will make all the members of the judiciary collectively responsible to the people of India. It calls for dealing with internal conflicts with delicacy and foresightedness, so as to maintain the credibility of the judiciary. Without constitutional solidarity, the institution of judiciary will definitely find it hard to command the respect of citizens.

Anurag Bhaskar is an alumnus of Dr. Ram Manohar Lohiya National Law University, Lucknow. He can be contacted at anuragbhaskar007@gmail.com and tweets at @anuragbhaskar_ 

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