| October 18, 2007 | Thursday | Shawwal 5, 1428 |
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Flip side of the legal brief
THE Fuhrer berated the Duce for wasting precious money on a finance minister just when Italy’s economy was going bankrupt. ‘But Fuhrer, you too have a minister for justice,’ the Duce shot back. The conjured dialogue from the fascist devastation of Europe is relevant for many wannabe democracies and dictatorships even today.
Or take today’s most powerful democracy on earth, whose citizens are subjected to the frequent ritual of a favoured judge being planted by an incumbent president to meet the political objectives of his party. We thus have pro-choice or anti-choice judges, or even judges who would help a president win a stolen election should the need arise.
Who says justice is blind when the blindfold it flaunts to woo the gullible is dotted with invisible peepholes? If despite the subterfuge the American system has worked it’s largely because of other checks and balances, including the role of the media that once forced the impeachment of a president who effectively stole an election.
So what happens when the media itself becomes the target of the judges’ ire? South Asia is home to a few democracies of varying political timbre, each boasting a worthy judicial system.
The reality is less flattering. From Pakistan to Bangladesh, from Nepal to Sri Lanka with India bringing up the centre-stage the judiciary has been tainted, mistrusted and worshipped but never kept out of the frame of the day’s given ‘national agenda’. (Pakistan’s case of course needs separate discussions because it is the only country perhaps where a mere judge threatens a powerful dictator. Pakistan is also unique in that its military ruler permits the mushrooming of private TV channels that love to snap at his ankles.)Generally speaking, the media has been at the receiving end of any administration’s stick in South Asia; civilian or military rule has rarely made a difference. The current ‘interim’ government in Bangladesh, which offers a civilian face to an essentially military rule, is not expected to bring solace to the country’s hapless media, who suffered no end during the previous rule of the two sheikhas, both popularly elected in their day mind you.
In Sri Lanka, the relentless use of military censorship and disappearance of unyielding journalists has been routine. Nepal is not over the hump in its transition from a brutal monarchy to a republican democracy where mayhem rules the fate of newspapers, TV stations and their correspondents. Indians are often led to believe that Indira Gandhi’s emergency rule was the worst nightmare their journalists ever endured. This is of course not true.
For a more accurate picture one has to look not at the so-called mainstream media who have been lulled to sleep by Rupert Murdoch but at the lot of Indian journalists in states and at district levels. Mrs Gandhi’s emergency would look like child’s play here. You don’t have to go any farther than The Hindu newspaper’s offices in Chennai to verify this potentially unpopular assertion. The editors were running for cover and some had to go into hiding to evade the vengeful onslaught of the state’s chief minister and its legislative assembly.
It is another matter that the concerned chief minister when out of power and faced with a judicial review of alleged misdemeanours wanted the cases transferred to the high court of another state! In Maharashtra, no judge seems to be willing to risk the Shiv Sena’s ire to deliver succour to journalists who are routinely beaten and threatened by a well funded fascist organisation, patronised by the corporate sector, and which so often gets elected to rule the state.
If there is any judicial protection for journalists in Kashmir or Gujarat, it is nowhere in evidence on the ground. In this respect the media in India (at the state level, which is where it matters) is as vulnerable as its ordinary citizens to the vagaries of the state and its judiciary.
The procession of court cases transferred out of Gujarat because the victims of pogroms didn’t expect justice from the state’s judiciary is endorsed by the Supreme Court’s willingness to allow the transfers. If this is not a lack of trust in the state’s judiciary by the apex court, what other meaning does it convey?As writer-activist Arundhati Roy observes, the higher judiciary, more so India’s Supreme Court, today ‘decides what our cities should look like and who has the right to live in them. It decides whether slums should be cleared, streets widened, shops sealed, whether strikes should be allowed, industries should be shut down, relocated or privatised…It has become the premier arbiter of public policy in this country that likes to market itself as the World’s Largest Democracy.’
All this when there is nothing truly sacrosanct about law and its hallowed upholders per se. The phrase ‘The law is an ass’ originates in Charles Dickens’ Oliver Twist, when the character Mr Bumble is told that ‘the law supposes that your wife acts under your direction’. Mr Bumble replies: ‘If the law supposes that, the law is a ass — a idiot’.
Indeed, the law was an ass when it served Adolf Hitler’s interests so faithfully. It still serves Gulf monarchies by chopping hands and heads on a weekly basis under the benign gaze of their renowned democratic benefactor. In democracies, the law contorts itself like in America or India to give an agreeable sheen to the otherwise gross daily abuse of the fundamental rights of their citizens.
In the neo-liberal era, the state has found a trusted method to contain growing unrest. The middle classes know the technique as the rule of law. What it has done in India has devastated millions. From the early 1990s, there has been a systematic dismantling of laws that protect workers’ rights and the fundamental rights of ordinary people — the right to shelter, health, education, water, for instance.
The book, A People’s History of the United States, says it precisely: “The Rule of Law does not do away with unequal distribution of wealth and power, but reinforces that inequality with the authority of law. It allocates wealth and poverty in such indirect and complicated ways as to leave the victim bewildered.”
Four journalists, including a cartoonist, tried to apply this insight to the case of Justice Y.K. Sabharwal, the former chief justice of India’s Supreme Court. They are facing prison for alleged contempt of court. A group of lawyers, former judges and other segments of the intelligentsia have come together to check this assault. Their movement — Campaign for Judicial Accountability and Judicial Reforms — has put focus on issues relating to corruption, immunity, contempt and the right to information within the hitherto supremely unaccountable judiciary.
‘This elitist and anti-poor bias makes the judicial system an instrument for protecting and furthering the interest of the rich and powerful, both Indian and foreign,’ says lawyer Prashant Bhushan, a leading member of the campaign. With so many Pakistani politicians looking to their own judiciary to bring them reprieve from a military dictator, it would be worthwhile to peep across the border to see the flip side of the picture.
javednaqvi@gmail.com
