Ashwani Kumar | Ensuring dignity for all, respect for the law, still a key challenge
DECCAN CHRONICLE | Ashwani Kumar
As India joined the world in celebrating human dignity on Global Dignity Day earlier this month (October 21), regrettably, over seven decades after Independence, we face a legitimate interrogation about our faltering record in the advancement of a defining national aspiration. India stands at number 94 out of 107 countries evaluated on the Global Hunger Index, with over 140 million undernourished children. Unabated cases of rape, encounter deaths, custodial torture, abuse of elders and children, depriving people of basic human rights and the loss of dignity of the marginalised multitude, the suborning of fundamental freedoms by a muscular State and a fraying democracy mock the constitutional promise of fraternity, with individual dignity as its principal constituent. Even though the Supreme Court, as our Constitution’s designated guardian, has declared that the right to life under Article 21, without dignity, is like "a sound that is not heard", a continuing loss of dignity is a painful reality.
Recent events of far-reaching importance involving the executive and judiciary have raised concerns about the institutional role and failure in advancing the Constitution’s promise of dignity. An unprecedented letter by the Andhra Pradesh chief minister to the Chief Justice of India, in which he complained about interference by a senior Supreme Court judge in the administration of justice by certain Andhra Pradesh high court judges, has compromised the institutional integrity and dignity of the higher judiciary. Making public his letter, on a sensitive subject under the Chief Justice’s consideration, the state’s chief executive hasn’t done justice to his office either. While judges must defend their dignity and vindicate their oath of office, the chief minister also cannot escape the burden of constitutional discipline and the high standards of rectitude expected of him.
Whether a criminal contempt action against the CM can alone redeem the prestige and dignity of the higher judiciary is debatable. Judging from the public response to the contempt proceedings in Prashant Bhushan’s case, only an unanswerable case of criminal contempt founded on clear mala fide by the CM would invest the punitive judicial remedy with credibility and a moral appeal. A credible resolution of a complex situation will indeed test the wisdom of the wise and the inter-institutional capacity to advance constitutional justice. A restrained and sparing use adds to the legitimacy of the contempt jurisdiction, and till recently this was the court’s preferred approach. This is because the authority and dignity of the higher judiciary as custodian of the constitutional principle rests not on the "coercive power of the judges but the deference and respect which is paid to them and their acts". Judicial dignity is clearly anchored in its moral rightness rather than a colonial heritage of enforced dignity in a republic of free men. The courts’ majesty lies in the objectivity, consistency and intellectual integrity of their judgments, which must remain open to public scrutiny and fair comment. Judicial dignity, in the final analysis, is a function of the community’s responsive chord to its pronouncements based upon a shared sense of justice. Judicial excess or abdication are both fatal to judicial prestige.
Unchecked media trials, especially on the electronic and social media, that repeatedly transgress constitutional boundaries with a devastating infraction of the right to privacy and reputation, mocks the promise of fair trials and judicial due process under Article 21. Despite several binding interdicts by the highest court against parallel media trials at various stages, adversely impacting the course of justice, the brazen illegality continues unrestrained under the gaze of the highest court. The Sushant Singh Rajput and Kangana Ranaut episodes are jarring illustrations. Instances of such trials are still fresh in public memory, like Aarushi Talwar (2017), Nambi Nayaran (2018), 2G spectrum (2018) and P. Chidambaram (2019), as well as the ongoing Sunanda Pushkar and Tarun Tejpal cases, to name only a few. Relentless violation of the constitutional guarantee of a fair trial have left unanswered questions about the abuse of freedom of expression and the impossibility of a just recompense for loss of reputation and dignity of the accused. The profound and poetic pronouncements by the Supreme Court espousing human dignity as the foremost constitutional principle remains no more than a pious declaration of constitutional intent.
Questions about the Supreme Court’s vacillation and seeming incapacity to enforce its judgments, without which the declaration of law is meaningless, have diminished judicial prestige. A seemingly resigned acceptance by the highest court of the routine and audacious negation of the legal principles of proportionality, neutralisation, necessity and postponement of publication enunciated by it in relation to media coverage of cases under trial is inexplicable.
The highest court needs no reminder of its own law that "the right to declare law carries with it the obligation of enforcing obedience to it". It is hoped that in the several petitions pending before the superior courts on the issue of media trials, an effective framework for enforcement of the law declared by the Supreme Court will be established.
Despite a robust dignitarian Constitution whose custody is entrusted to the joint endeavours of the three branches of government, the recent record of our liberal democracy suggests an institutional deficit in the advancement of constitutional goals. But we need not give in to despair as we know our dignity, like destiny, lies within ourselves. The failure of our representatives and democratic institutions to secure it cannot deter us from pursuing the dignitarian agenda as a purpose in perpetuity.