Indian Judiciary no more a caged bird

Samarjit Kambam *

Supreme Court of India, photographed about 170 metres from the main building outside the perimeter wall
Pix - Wikipedia/Legaleagle86

Democracy is a system of governance which stands for the people forit is the people that elect the leaders of a democratic nation or state. It is also a known fact that the Indian Constitution has three pillars viz, Legislative, Executive and Judiciary. Judiciary is one of the most important institutions in our country as it is a body responsible for deciding the collective destiny of over one billion plus people of India who are diverse in many respects, yet united under a democratic constitution.

Without judiciary, a healthy democracy is not possible. It is a welcome development that the judiciary has broken the stereotype of the pathetic culture of Indian democracy wherein the political leaders, lawmakers and the netas had kept the judiciary decapitated for decades. In fact, the judiciary remained in a dormant state since India regained freedom from the British colonial yoke.

The Fundamental Rights embedded in the Indian Constitution were borrowed from the American Constitution, the Directive Principles of State Policy was borrowed from Constitution of Ireland,and the Parliamentary System was borrowed from the British Constitution. Time and again since independence, Parliament has tried to gain control over Judiciary and in return the Judiciary has tried to defend itself and not to get bogged down.

The fight between the Parliament and Judiciary reached its peak during former Prime Minister Late Indira Gandhi’s period when Emergency was proclaimed in June 1975 for 21 months. It was a time when all freedom was snatched away and the country was fettered by defying all norms of democracy. During the period, the judiciary was kept at the backburner, only for name sake.

It employed various methods to threaten the normal functioning of the judiciary. Some methods include filling the Supreme Court with Pro-Government judges, supersession of judges, appointment and transfer of judges without their consent. Severe press censorship was imposed and civil liberties were dumped into the dustbin.

The 1975 Emergency was daylight robbery of human rights, a negation of Constitutional ethos and principles. It was a clear example of dictatorship and authoritarian proclamation. The horrendous Emergency provisions were borrowed from the German Reich wherein the independence of the judiciary was threatened and kept at arm’s length from the ruling government during the controversial period.

By leaps and bounds, the Indian Judiciary rekindled with renewed vigour and has liberalised to a great extent with the notion that people in a democratic nation deserve to live the democratic way. The NOTA (Non of the Above) which is a right to negative voting inferred to the people starting from 2014 general election is a landmark judgment which allows the voters to express their pent-up anger on the politicians.

Instead of voting unwillingly for a particular political candidate, NOTA is an option that gives the people their right to express in the polls that they don’t feel any of the political candidates deserve a vote.

It leads to systemic change in pollswhere political parties will be forced to project clean candidates. If the right to vote is a statutory right, then the right to reject candidate is also fundamental right of speech and expression under the Constitution as is rightly projected by the Supreme Court. Recently, the Supreme Court came up with Passive Euthanasia with the concept that individuals have the right to die with dignity in a verdict that permits the removal of life-support systems for the terminally ill ones with no hope for cure or those in comas.

The Court also permitted individuals to decide against artificial life support should the need arise by creating a “living will’ provided strict conditions for executing a living will is made by the person in his normal state of health and mind. The SC was hearing a plea by Common Cause, a human rights NGO to declare ‘right to die with dignity’ as a fundamental right within the fold of right to live with dignity which is guaranteed under Article 21 of the Constitution.

The Court also laid down guidelines on who would execute the will and how a nod for passof Passive Euthanasia would be granted by a medical board set up to determine and carry out any “advance directive”. Euthanasia and physician-assisted suicide are legal in The Netherlands and Belgium since 2001 and 2002. In the US, Switzerland and Germany, Euthanasia is illegal but physician-assisted suicide is legal.

In the past, the Supreme Court remained a mute spectator in the various cases of extra-judicial killings, custodial deaths, fake encounter killings of innocents by the armed forces behind the veil of AFSPA, 1958 with the highest number of deaths happening in Manipur as per the death to population ratio. Now, changeth in order has taken place with more than 100 army officers and many state police personnel called up to appear in court for killing innocents with impunity which is tantamount to murder by using AFSPA distortedly.

Thanks to the whole-hearted and undying efforts of Extra-Judicial Execution Victim Families Association (EEVFAM) and various human rights organisations of Manipur for bringing up cases and files seeking justice pertaining to the victims of alleged extra-judicial killings and fake encounters in the state of Manipur since 1979 to bring justice to the whopping number of 1,528 (actual number may be more) victims leaving behind many widows, orphans and parents without sons/daughters in many families of Manipur.

Head Constable of Manipur Police Herojit Singh deserves special mention for his honest confession on how numerous fake encounters were carried out with impunity by the armed forces operating in Manipur. His confession was an eye opener for the Supreme Court about the symphony of executions carried out at will by the armed forces towards the innocent civilians.

In an unexpected forward-thinking judgment and show of liberalism which is of paramount importance for a democratic nation, the Supreme Court came up with the latest historic judgment where the LGBTQ (Lesbian, Gay Bisexual, Transgender, Queer) community are counted as “Third Gender” by de-criminalising Article 377. Homosexuality, lesbian and gay prevailed since millenniums. Even in the Vedic Age, Ved Vyasa, in his epic scripture Mahabharata included characters that are homosexual, lesbian and gay.

However, since time immemorial, they are treated as handicaps and had to live in fear amidst all the social stigmas and discriminations. But they are human beings and as human beings they have every right to be treated as equal members of the society. The LGBTQ community possesses the same human, fundamental and Constitutional rights as other citizens and ought to be treated equally before the law, enjoy dignity and freedom of expression, availing them rights to education, jobs and voting and not face discrimination from the society as per the Supreme Court which is true to the bone.

Now that India’s Supreme Court has an exemplary record of interpreting statutes in a way that expands human rights in the country, the hope remains that the Supreme Court will consistently uphold an idea of India in which the law embodies Constitutional values of privacy, equality, dignity and non-discrimination for all citizens.