Reading a letter by lawyers

It must be seen in the context of competing views of constitutionalism today

HISTORIANS HAVE DOCUMENTED the prominent role of lawyers in the freedom movement. Mahatma Gandhi, Jawaharlal Nehru and Sardar Vallabhbhai Patel were lawyers and so was B R Ambedkar, the chief draftsman of our Constitution. There were many more lawyers among freedom fighters. This was no accident. Lawyers share a natural affinity with the rule of law in society. Today’s lawyers have inherited this legacy of activism from those who led the freedom movement.

The separation of powers adopted by the Constitution is an article of faith in a liberal democracy. Judicial review is also a basic feature of the Constitution and the judiciary exists to exercise checks and balances when the rights of citizens are challenged because of executive overreach.

India’s Constitution is unique in permitting direct access to the Supreme Court when fundamental rights are violated. As the Chief Justice of India pointed out recently, access to the Supreme Court is available to all, no matter how big or small. When, therefore, lawyers see these doors open to some and closed to others, it is normal for them to protest.

The recent letter from 600 lawyers raises the issue of the judiciary’s role and that of the legal profession in a society governed by rule of law. This then takes us to the question: After 75 years of Independence, are we a rule-of-law society?

Many political analysts have pointed to the democratic deficit in our country evidenced by the violence against minorities, attacks against opposition parties, the decline in the independence of a section of the media and the incarceration of human rights activists. The defence of the Constitution is one of the main challenges we face today. The ruling party has often been accused of ignoring the liberal Constitution and using cultural nationalism, instead, as the governing norm.

Unfortunately, this approach to law seems to be seeping into sections of the judiciary. A family court in Madhya Pradesh recently held that it is the duty of a married Hindu woman to wear sindoor. The MP High Court is reported to have told a teenage couple in a live-in relationship that it was “not necessary to enjoy and enforce” every fundamental right enshrined in the Constitution.

If this is indeed the case, why do we have Article 226 or Article 32, considered by Ambedkar, as the “heart and soul” of the Constitution?

The letter of the 600 lawyers must be seen in the context of competing views of constitutionalism in the country — those who believe that human rights are not negotiable under any circumstances and those who believe that liberalism is a foreign import and must be rejected. The role of lawyers in raising human rights issues depends on which view you take.

Each time this independence has been under threat, it is the legal profession that has risen to the occasion and ensured that the judiciary remained insulated from partisan politics. The NDA government’s attempt to introduce a dominant voice in the appointment of judges was opposed successfully by the legal profession. When lawyers notice that there are other ways in which the independence of the judiciary can be undermined, it is natural for them to protest.

This is the context in which the letter by 600 lawyers led by Harish Salve must be seen. They see voices among us as “browbeating” of the judiciary and an attempt to pressure it. This is a trivialisation of the main issue raised by some of us about the independence of the judiciary being in jeopardy.

The letter has now been endorsed by the PM, who ironically sees this as a move by the Congress. The fact is, we who speak for the independence of the judiciary speak on our own behalf, whereas the letter writers appear to be speaking the language of the powerful ruling party that is trying to silence dissenting voices. The Vice President of India has also branded us as “anti-national” for raising an alarm over the threat to the judiciary’s independence. This seems more an attack on the judiciary, and human rights lawyers are the collateral damage.

India’s Constitution was drafted at the time when the Universal Declaration of Human Rights was in place. The civil and political rights enshrined in the Constitution reflect the genius of that declaration, to which 193 nations, including India, have subscribed. This is why we call ourselves a democracy, indeed “the mother of democracy”.

Human rights lawyers have always called out the judiciary when its judgments compromise the life and liberty of the citizens, regardless of the political party to which they belong. The judiciary too is conscious of its mistakes and does welcome constructive criticism. The current CJI, for instance, overruled the decision of the court in ADM Jabalpur in Puttaswamy case — I commented favourably on that verdict in this paper (‘Right to privacy, a brake on government, IE, August 25, 2017).

The letter writers are also aggrieved by human rights activists using the media. They seem to overlook the fact that the media is meant to be an important pillar of accountability of those in power, including the judiciary — its use must be encouraged.

An independent Bar is a precondition to an independent judiciary. In a polarised society where much depends on the ability of the courts to defend the Constitution, it is normal for the ruling party to seek allies in the legal profession. But as we head into a national election, and the election of the head of the Supreme Court Bar Association, lawyers must think carefully about who they want as their leader.

The writer is senior advocate, Supreme Court and trustee, Lawyers Collective