(This is the latest edition of the Political Line newsletter curated by Varghese K. George. The Political Line newsletter is India’s political landscape explained every week. You can subscribe here to get the newsletter in your inbox every Friday.)
The political revolution in Bangladesh dismantled the country’s Supreme Court too, as protesters forced the Chief Justice and two other judges to resign. Liberal democracy assumes that the judiciary is apolitical, and even insulated from public opinion. What Bangladesh witnessed may be easily brushed aside as a sign of a developing society, but the fact is that the judiciary has become a battleground of politics across democracies, including the United States. Weaponisation of the judiciary to settle political scores is now widespread, which in turn is the sign of deeply polarised and fractured politics.
When deposed Iraqi leader Saddam Hussein was executed by the succeeding regime in 2006, U.S. President George W. Bush said unlike his political opponents who were arbitrarily punished, Hussein got a judicial process. In Bangladesh, the judiciary had become a close partner in deposed Prime Minister Sheikh Hasina’s politics that targeted Islamists, her main political opponents. Immediately after her government was overturned, the country’s law enforcement is turning against her, and she is now facing charges, including murder, in multiple cases. In the United States, where judicial appointments follow political affiliations, Democrat-appointed prosecutors and judges were going after former President Donald Trump. Judges appointed by Mr. Trump to the Supreme Court formed part of the majority that overturned the Roe v Wade case that granted abortion rights across the country. U.S. politics is considerably about controlling the judiciary through political appointments anyway.
The rise of populism in democracies has spawned an argument that all that is popular is not right, and hence there should be legal control over legitimate politics. This has led to curious control over speech and mobilisations in democracies — from Germany and the U.K. to India and the U.S. What is legitimate politics is defined by law, and law is enforced by the judiciary. Occasionally, societies witness revolutions that overthrow the existing order through actions that do not conform to the existing law — from the Indian freedom struggle to Bangladesh’s independence from Pakistan and its current upheaval are all such moments of extraordinary politics that act outside what is legal. Once the revolution becomes the new order, it forms its own judicial order or repurposes the pre-existing one. I had discussed this in an earlier piece — the distinction between ordinary and extraordinary politics.
There is an ongoing debate in India over the power of the judiciary to set the limits of Parliament to amend the Constitution. The existing Supreme Court judgment that there is a ‘basic structure’ of the Constitution that cannot be changed at all is in debate. If people are sovereign, can there be a limit on Parliament’s powers to change the Constitution? Also related is the question of judicial appointments. Judges appoint judges by a process that remains arbitrary and even partisan. There is also a view that the judiciary in India is deferential to majoritarian politics and to the executive.
All this means that there are a lot of issues to be settled about the judiciary’s linkage with public opinion. The argument that the judiciary must be autonomous of politics can be valid, when the implication is that it should not be influenced by the immediate past or present. But can it remain disconnected from popular will over a longer time frame and unmindful of the need for broad acceptance in society?
Federalism Tract: Notes on Indian Diversity
Governor vs CM in Karnataka
Karnataka Governor Thaawarchand Gehlot has sanctioned the prosecution of Chief Minister Siddaramaiah. How firm is the legal ground for this action?
Enemies of the leader, and the community
Crime and punishment are socially determined. Those who were counted as traitors to the nation until recently are now ruling Bangladesh and those who were at the helm are being counted as traitors now. This argument takes many different forms. Shiromani Akali Dal (SAD) leader Sukhbir Badal thinks those who are questioning his authority are nothing less than traitors to the community itself. “Ours is a 103-year-old party. Today our ‘qaum’ (Sikh community) is being attacked. Your own party (SAD) is being attacked. There are some traitors within our ‘qaum’. There are some people who are sold for ‘chhotti chaudhars’ (small positions) and gunmen (security men) while their only target is to weaken our ‘qaum’,” said Mr. Badal, according to a PTI report last week. Rivalries within the Sikh community in Punjab have remained heightened in recent days.
Dreaming of a future without caste
Speculating about a future casteless society in fiction? That’s what a collection of short stories from various Indian languages is offering. According to its editor, the attempt is to prompt people to imagine what might sound strange right now. But future, is, yes, future.
