Ram Guha on the Supreme Court

Ram Guha writes in the Indian Express- 

 This letter is written with respect as well as in anguish. I write as a historian and as a citizen, concerned in both capacities with the growing lack of faith among many Indians in the functioning of the Supreme Court (SC).

The problem is Guha has not studied Constitutional Law. He may be a citizen but he represents a very small minority indeed which has completely lost all political power or access to it. These fools may be disappointed by recent Court judgments but they could come up with no good arguments against them.  

Let me say straight away that this is part of a wider degradation of Indian democracy, in which the Court is by no means the central actor.

Guha is unhappy that a Party he does not like is ruling the country. But democracy is not degraded by choosing the best leader on offer. This is where Guha and his ilk fell down. They could offer no better alternative. They could only lecture others about degradation.  

Other (and possibly more serious) manifestations of this degradation are the politicisation of the civil service and the police; the creation of a cult of personality; the intimidation of the media; the use of tax and investigative agencies to harass and intimidate independent voices; the refusal to do away with repressive colonial-era laws and instead the desire to strengthen them; and not, least, the undermining of Indian federalism by the steady whittling down of the powers of the states by the Centre.

These have been persistent features of Indian society from before Guha was born.  

I should also make it clear that this ongoing degradation of Indian democracy is not the fault of one party or one leader alone. Rather, these perversions of the democratic process were set in motion by the Congress Party when it was in power at the Centre; and they have been further deepened under the rule of the Bharatiya Janata Party since May 2014.

What is the alternative? Invite the British to return?  

While the SC cannot be blamed in any way for why and how this degradation of Indian democracy originated, it has, in recent years, done little to stop or stem it.

This has always been the case. Under exigent circumstances there is no rule of law whatsoever. This was true under the Brits and it was true under the Mughals. As India has prospered a little the Rule of Law has been extended. The Bench now can be much more assertive than in the past. But only rapid per capita Income Growth can turn India into the sort of country Guha would be more comfortable in.  

Some examples of its failures in this regard have been the Court’s refusal to strike down laws like UAPA that should have no place in a constitutional democracy;

But without which not just policemen, but Judges too, would be being slaughtered. In the Nineties, with no strong Government at the Center, we saw the Courts turn a blind eye to extra-judicial killing on an industrial scale.  

its unconscionable delay in hearing major cases (such as with regard to election funding and the Citizenship Amendment Act);

has Guha seen the sort of writs that have been presented on these issues? They are virtually illiterate and self-contradictory. The Bench can't give priority to a case which is prima facie weak.  

and its denial of basic human rights to the children and students of Kashmir, deprived for a full year of access to education and knowledge as a consequence of the longest internet shutdown in the history of any democracy.

Can education only be gleaned through the internet? Where an internet ban is implemented to save innocent lives from ongoing terrorist violence, the 'doctrine of political question' applies. However, the Bench is welcome to weigh up evidence presented to it.

Guha seems to believe rights are indefeasible. This is because he has no knowledge of Jurisprudence.  

Constitutional scholars and practising lawyers can perhaps multiply these examples manifold.

Good ones would have to winnow out ones Guha has mentioned. The fact is, if a good argument is presented to the Court, then they can take it up as a matter of priority. Guha is misled by newspaper reports or articles about crap petitions which have been hastily filed with an eye to publicity. Naturally, these can't be proceeded with. The Bench has to look at arguments as presented- not as they should be formulated.  

The COVID-19 crisis has seen a further acceleration of this dangerous trend towards authoritarianism and the centralisation of power.

No. It has shown that a poor country lacks a lot of powers vital to save its people from death or penury. Guha is not concerned with the human suffering all around him. He looks only for sticks to beat a Government he does not like with. 

The Union government and the ruling party have used the crisis to further promote the cult of personality,

because the Prime Minister gets air-time- how unfair!  

to further diminish the powers of state governments,

how? Guha won't tell us because he doesn't know. 

and to further attack the free press.

During a pandemic it is right and proper to prosecute those who publish fake news which may endanger human lives. Facebook does it. Is it under the control of an authoritarian Government?  

Regrettably, as the hearings and orders of the past few months show, the Supreme Court seems unable or unwilling to check these ominous trends.

Guha used to talk of 'Constitutional patriotism'. He didn't know that the Supreme Court alone has the authority to interpret the Constitution. Thus, once the Bench made decisions he didn't like, he turned against it.  

The failure of the SC is in part a failure of leadership.

in other words, Guha doesn't like the Chief Justice 

That one serving chief justice could tell a daughter wishing to see her mother who had been detained under a draconian act to be careful about the cold,

This was Ranjan Gogoi, whom Guha does not like. He asked why the daughter wanted to move around Srinagar. It was cold there. Judges need to avoid asking 'leading questions'. But they should ask questions which give the petitioner a chance to clearly express their innocent intentions. In this case, the answer the Judge expected was 'I have to move around to do such and such necessary things for my family. I won't be travelling around for any political or anti-national reason'. As it happens, he did give her permission to see her mother.  

and that another serving chief justice could tell migrant workers left jobless after the unplanned lockdown that since they were being given some food they should not ask for wages —

This is not what happened. Chief Justice Bobde asked the petitioner why, if food was being provided, the workers should be paid. The answer was that they needed to send money home to relatives who were not in Government provided shelter homes. 

The reason Judges ask questions is so that the petitioner can supply information which may not have been clarified in the petition. But there is a limit to what the Bench can do. They can't magically create wealth by judicial order.  

that such callous and unfeeling remarks could come from the chief justice himself reflect poorly on the Court.

Guha displays his ignorance of the Law. But he must have attended interviews or himself been on an interview panel. He has surely noticed that questions are often framed in such a way that the interviewee can give a good account of herself. She can add something relevant to the decision. Interviewers may appear callous and indifferent. It is only with hindsight that you realize that the old geezer who asked a seemingly impertinent question was trying to help you. He was giving you an opportunity to shine. 

And that, in the less than six years that the current government has been in power, one chief justice has accepted a Governorship immediately on retirement, and another has accepted a Rajya Sabha seat, also immediately on retirement, reflect even more poorly.

India did not give life-time tenure to Judges because most came from England. They wanted to retire there. However, it has been a continuous practice of Indian Governments post-Independence to make use of the talents of retired Judges. 

Guha is referring to P.Sathasivam who did well as Kerala's Governor. There have been quite a few Judges who became Governors. The objection was raised that the CJI administers the oath to the President so an exception should be made. But this objection is foolish. The Indian Presidency has turned out to be largely ceremonial. 

The other case is of Ranjan Gogoi who comes from a very important political family in Assam and whose help will be needed to resolve the crisis there. He needs to be in the Upper House so as to be able inform his colleagues about the legal position as well as the facts on the ground.  

Yet one cannot blame the top man alone. It may be that the powers of the so-called Master of the Roster are imperfectly defined, and can lead themselves to widespread misuse by the incumbent (as the press conference held by J Chelameswar et al in 2018 asserted).

This was alleged, but no proof was forthcoming. It is perfectly possible that a particular CJI pisses off his brother Judges But CJIs have a short spell in office.  Thus the problem disappears by itself. Speaking generally, CJIs cultivate fraternal relations with their colleagues. The Master of the Roster can take account of private information and discretely lighten a particular Judge's workload as and when required. But he can also ensure that no work is sent to a corrupt or crazy Judge.

But, if the Court is complicit in the steady, continuing and accelerating degradation of our democratic processes and democratic institutions, this cannot be attributed entirely to the chief justices. I think the time has come for all the serving justices in the highest court of the land to think seriously about the ever-increasing gap between their calling as defined by the Constitution, and the direction the Court is now taking.

This is impertinent. Guha does not know the Constitution. He is not a lawyer. Judges do know the Law. They should not listen to a cretin.  

The reputation of the Supreme Court of India today may be at its lowest ebb since the Emergency. That is the clear impression one gets from the writings of our top constitutional scholars. Thus, in a commentary on the last chief justice, Gautam Bhatia

Is not a top constitutional scholar. He is doing a D.Phil at Oxford while editing a Sci Fi Ezine. He writes nonsense. The fact is Constitutional Lawyers are very well paid. They have some locus standi. If they take a visiting Professorship, it is for top dollar or else out of a sense of public service. By contrast, academics are ill paid. If they are genuinely smart then they can make much more money at the bar. By constantly appearing before the Supreme Court, they gain an understanding of how the Constitution is being interpreted. At that point, and only at that point, can they be said to know Constitutional Law. It is a separate matter that a particular school of jurisprudence may influence Judges and Constitutional lawyers. But you have to look carefully at how Courts use such material.  

writes that “under his tenure, the Supreme Court has gone from an institution that — for all its patchy history — was at least formally committed to the protection of individual rights as its primary task, to an institution that speaks the language of the executive, and has become indistinguishable from the executive” (The Wire, March 16, 2019).

The problem here is that everyone in the legal fraternity knows that Bhatia, who lives in England and write Science Fiction, is a silly fellow writing trash for a Leftist smear-sheet. He has himself ensured that the Indian Bench will disregard any argument he may put forward.  

Meanwhile, Pratap Bhanu Mehta

a Guha level cretin  

has observed: “We look to the Supreme Court for a semblance of constitutional deliverance. We have no idea how a court will rule. But one of the lessons of our recent history is that we misunderstand how a Supreme Court functions in a democracy. The Supreme Court has badly let us down in recent times, through a combination of avoidance, mendacity, and a lack of zeal on behalf of political liberty” (IE, December 12, 2019).

Mehta certainly misunderstood everything about how India functions. Like Guha, he thinks the place is actually Sweden. He is particularly upset that many Indians seem to be Hindu. He feels very badly let down in this connection.  

Most recently, in writing of “the transformation of the Indian state into a repository of repression”, Suhas Palshikar comments that “this political transformation would not have been so easy without the willingness of the judiciary to look the other way, and occasionally join in the project” (IE, August 4).

Palshikar was Chief Adviser NCERT Political Science under UPA. Naturally, he has a bone to pick with the present administration. 

However, the point to note is that the UPA's patronage of 'public intellectuals' backfired. Why? Those intellectuals were as stupid as shit. But Rahul Baba was stupider. He started babbling their brand of nonsense. Thus Congress became unelectable. 

I suppose the Indian Express showcases the cretinism of guys like Guha and Mehta to remind us that however bad things might now be, at least nobody with any power now listens to these cretins.  

These assessments are shared by many of the wisest and most experienced members of the Bar,

but 'wisest and most experienced' still means witless sleazebags 

who —unlike the scholars cited above — are not at liberty to express their anxieties in public.

Why not? Prashant Bhushan seems to have no such difficulty.  

I broadly endorse the assessments of Bhatia, Mehta and Palshikar myself.

But you are completely ignorant of the Law. Go back to writing about Mahatma Gandhi.  

At the same time, as a historian, I know that while institutions do decay, they can also be revived.

But, at the same time, we know that decay in a historian's brain is irreversible.  

In the case of the Supreme Court, its capitulation to the state and politicians in power in the 1970s, before and during the Emergency, was followed by a steady assertion of its independence and autonomy in the 1980s and 1990s.

Why? That is the question a historian must answer. The fact is, when the Left was in the ascendant, the Courts were seen as a tool of the bourgeoisie. Thus the Bench could not assert itself for fear of being reconstituted as a tool of the Ruling party. Once the Left declined, the Courts could assert themselves. They became activist because politicians and bureaucrats preferred to kick the can down the road by referring everything to the Bench and then claiming the thing was 'sub judice'.  

One must likewise hope that the current decline may be arrested and reversed in the years to come. If, on the other hand, the forces of authoritarianism and sectarian bigotry continue to gather momentum, and the Supreme Court does little or nothing to check them, then the verdict of history and of constitutional scholarship will be even harsher than it is at present.

But this verdict has been completely ignored! So what if Guha and Bhatia and Mehta decide to write their verdicts in their own shit using only four letter words? Nobody will care. 

In that case, the Court of today may come to be viewed by future generations of Indians not merely as an executive Court, but as a collaborationist Court.

Will these future generations of Indians speak Swedish? If not, then Guha is talking nonsense.  

Hence this letter, a desperate cry from a historian and citizen who sees his country’s democracy and constitutional framework crumble before his eyes.

Guha may well be desperate. He is clearly at the end of his tether. Why not simply emigrate? Ranajit Guha lives near Vienna. Guha could go to Stockholm. No doubt there are some people there more ignorant than him about India. 

Alternatively, Guha could remain in India and continue to turn into the Huccha Venkat of Indian historiography.