Sunday, May 17, 2015

Not it's job

The Supreme Court came out with an extremely absurd judgment this week, mandating that government ads cannot be used to build a personality cult and thus, the ads can only have images of the President, the Prime Minister and, strangely, the Chief Justice of India, as well as deceased leaders. This judgment is problematic on two counts, which I will discuss. However, this article should be seen as fair criticism of a judgment on its merits and not any attempt to tarnish the power or reputation of the court, thus inviting contempt of court.

The first problem revolves around the selection of the candidates whose faces may appear on the said ads. If the logic is to allow only constitutional positions to feature on such ads, then the list is much longer than the one created by the court, and does not in fact, include dead people (except maybe Mahatma Gandhi). If the aim was to create a rules-based system, then the rules themselves must be based on some firm logic. If the aim is to avoid creating personality cults on public money, then the court surely could not have missed the cult of dynasties which have gripped India, from the little Sinhas to the big Nehru-Gandhi dynasty. If the logic of the court is to be extended, then all the universities/roads/buildings/hospitals/schemes etc. named after the Dynasty should be stopped, because Rahul, Sonia, Priyanka and Vadra exploit that legacy. As do many other politicians from lesser dynasties. In short, the court's order, if taken to logical conclusion, does not stand the test of logic and in fact, represents a slippery slope.

The second problem is more serious though. Is it the court's job to keep correcting each and every infirmity in society? Constitutionally, the Supreme Court is mandated to hear matters relating to interpretation of the law, appeals that involve substantive constitutional questions and matters pertaining to fundamental rights. While these may seem rather broad, the court, over the decades, has loaded itself with much more, so much so that petty matters related to tenancy and even appeals to change the national anthem have reached it. From being the court of last resort, it has become just another court in the appeals process, or even a court of first resort in some cases. Naturally then, the wheels of justice hardly move for a vast majority of people - and they are angry. Prime Minister Narendra Modi made a mention of 'five star activists' that clog up the system, but could they do so without the court itself over-reading its constitutional mandate?

In my opinion, the problem with the Supreme Court's verdict, and indeed the core problem that has created the judicial mess, is the instinctive desire to create a paternal state at all levels, so that some higher authority such as the judiciary (but not limited to it) makes decisions for people, assuming people are too foolish or uneducated themselves to make those decisions. Will stopping government ads end personality cults? No - it will simply be pushed into the vast black market instead. Is it a constitutional desire to end personality cults? No - because that is the will of the people (for better or worse). The Constitution cannot be above its people and any attempt to do so will fall flat. The fact is that if personality cults are so bad, then people have to figure it out for themselves. Constitutionally, it is not the Supreme Court's job to teach them what's good or bad for them and a liberal interpretation of the Constitution to that effect does much more harm than any good could justify. 

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