Help The Kashmir Monitor sustain so that we continue to be editorially independent. Remember, your contributions, however small they may be, matter to us.

Should higher judiciary seek the people’s mandate?


By Ujjawal Krishnam

Major General Mrinal Suman’s comment on Supreme Court of India has triggered the debate on the judicial domain of higher judiciary. Mrinal Suman comments,”If judiciary wants to govern the country, let it seek the people’s mandate.” He argues: The higher judiciary is not mandated to govern the country. For, only people’s elected representatives get mandate to govern the country; and that is the essence of democracy.


It is also appalling in the view that comment is coming from someone who has been a highly decorated officer in the armed forces.

It is curious to watch many dilettanti fulsomely insulting higher judiciary but it is the fact that the Indian judiciary is equally accountable to the nation vis-à-vis executive and legislative and its people secure the right to question judiciary’s function and circumference of its jurisdictions. The uproar is obvious as supreme judiciary has taken strident steps to shake the foundations of majoritarianism and patriarchy which are instilled in Indian society.

Decriminalisation of colonial Section 377(on homosexuality), Section 497(on adultery) of the Indian Penal Code to allowing entry of women in Sabrimala shrine— Supreme Court disappointed many Hindus. Supreme Court was also seen infuriating Muslims as the three-judge bench declined to refer the Ayodhya dispute to five-judge constitutional bench on the reconsideration of 1994 Ismail Farooqi’s judgement case. If the apex court starts adhering to religious appeasement policies, a truthful adjudication will have to wait for an indefinite period of time. As I argued earlier, the interference in legal proceedings in a big democracy like ours is probable.

In the darkness of democracy, those who protect the basic human rights against all odds are undeniably heroes without capes and our strong judiciary confidently stands among them.

Article 32 of the Indian constitution gives an extensive original jurisdiction to the Supreme Court in regard to enforcement of fundamental fights. Higher judiciary is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them. The Supreme Court, under powers of judicial review, can declare a law as unconstitutional or ultra vires if it contravenes any provisions of the Constitution. An impartial judiciary, independent of the legislature and the executive, is one of the prime features of the constitution.

It is very important in a diverse country like ours which boasts more than sixteen hundred mother tongues scattered among several religions and beliefs to have a uniform code of constitutional morality. Lead counsel in Joseph Shine v Union of India, Kaleeswaram Raj told me following the SC verdict on Adultery:

“Constitutional morality in the given case leads to a plea for minimal State action in private intimate decisions. Every individual aberration in a family cannot justify the State’s interference using its police force. A citizen is entitled to preserve a “lawless zone” around her for her true organic development. People can always reject infidelity and even fight against it. But its criminalisation is a different matter altogether. One needs to fight against such illegitimate state action. That is a libertarian political struggle, which is based on constitutional morality, which is also a form of political morality. The state should be politically fenced out from the individual’s deviations and aberrations.”

Justice must be availed to every citizen and this is an important duty of democratic establishment in India. Living in a democratic system alone does not guarantee justice to citizens in all its functionality. One among many is mass exclusion of names in the National Register for Citizens in Assam where not only the social and economic justice but also the political justice is being denied. This is the reason why constitution-makers included social, economic and political justice as constitutional values which grant Indian citizens an integral freedom in the propagation of a new social order, based on socio-economic justice. This ideal of a just and egalitarian society, as argued by several jurists, remains as one of the foremost values of the Indian Constitution.

Promotion of fraternity and liberty is essential to realize the dignity of the individual. It ensures equal participation of every individual in all the processes of democratic governance. A vast democracy like ours can’t function properly without legitimising these strands of constitutional values. If democracy starts functioning as many alike Mrinal Suman envision, this may put the country in peril. The enforcement of constitutional morality over social or religious morality keeps country intact against the venomous political tuning and hazardous polarisation.

The right to protest peacefully, enshrined in Article 19 of the Indian Constitution, is being eroded across the country. In many instances, the police are cracking down on those demanding action or raising awareness about legitimate issues. This is why, we at Citizens for Justice and Peace moved to National Human Rights Commission (NHRC) demanding guidelines on how the Police behave with peaceful protestors. If our executive would be democratic enough, condition as such wouldn’t ever be surfacing, let us not forget Hashimpura massacre. I personally lodged multiple complaints with Vadodara Commissioner of Police against policemen who thrashed juvenile students, manhandled faculty members and created chaos in a Gujarat varsity on the eve of Independence Day this year. There is no thorough enquiry into the matter yet. Or, why am I even hopeful here? Will they penalise their own associates if they feel that the matter has a nice cover-up as victims may turn hostile. I have filed an RTI with Vadodara CP and waiting for response. So, here comes the last hope— higher judiciary. That simply means a petition, or will High Court or Supreme Court have to seek dear people’s majoritarian mandate before hearing petition?

This, I believe, locally answers the questions regarding the ‘extreme’ outreach of judiciary. It is because of those only who failed to send the right candidates to the houses of legislation, the required laws couldn’t be enacted in the favour of voiceless and prejudiced nor a cadre of committed executive could be raised for the very trodden.

The hubhub erupted over the Supreme Court’s judgements compassing constitutional morality is admirable as it shows Indian constitution’s vast precincts allowing its people to even question its judiciary but its people shouldn’t forget that apex court has picked this role because statutory bodies including executive and legislative failed to follow their duties they were entitled to uphold so. We shouldn’t forget that the founding fathers of our nation enacted laws making higher judiciary as an appellate authority for an indefinite term, so to protect and promote our social, emotional, mental and physical development as humans.