Thursday, January 26, 2017

Republic Day Lecture: The Judicial Republic

In the grand scheme of things, the concept of the separation of powers is fairly new. For much of human history, the tribal leader, and later the King (and sometimes the Queen), was the one who made rules, executed them, arbitrated disputes, and handed out punishment. If not directly, then the ruler would delegate powers - but those powers would ultimately flow from one. The idea of electing the leader came next - but, as in France, that leader was still all-powerful. The idea of separating and limiting powers is fairly new, and therefore, quite untested.

Ideally, separation of powers calls for the legislature to create laws, the executive to implement them, and the judiciary to hear appeals about those laws. However, each of these is, at the end of the day, run by fallible humans, and it does not work as well. The classic case is when the executive usurps the legislature and creates law. While Nazi Germany is an extreme case, even within India, the 10th Schedule has essentially made it difficult for the elected majority to act against the executive in Parliament, even if they disagree with them. Thus, in India, the government at least controls the legislature, although the opposition prevents it from de facto legislating.

The Benevolent Leader
But India's experience with Westminster democracy is by no means unique. True, the 10th Schedule institutionalizes the hold of the party on both the executive and the legislature, but even without such an institutional setup, many democracies have a patronage system that more or less ensure the same thing. Perhaps that is the very nature of the system, which a Presidential system consciously avoids by separating the mandates of the two branches. Regardless, the founding fathers of the Indian Republic felt it suitable to have this system, as do many countries that are not doing that badly either.

What is fairly unique to India though, is the usurping of both executive and legislative powers by the judiciary. There is no other country in the world where judges appoint themselves, making them completely unaccountable to elected representatives or even the people, for that matter. But that's only the tip of the iceberg. The Indian Supreme Court is quite unique in the way it orders inquiries, institutes taxes, hears cases with extremely diluted locus standi requirements, frames regulations, and in some cases, interprets the Constitution in exactly the opposite way as the most obvious interpretation would be.

Not all of this is a bad thing though. It was the Supreme Court which outlawed the inhuman practice of ragging in colleges, possibly saving many lives in the process. In many cases, the court is the last resort for many in the face of an ineffective government and an unconcerned legislature. And yet, these is always a slippery slope - last year, in ordering people to stand for the National Anthem in theaters, the court stunningly declared that there are no individual rights, but only community rights, a move that would have made Ambedkar cringe, for he knew what community rights meant for Dalits.

The Making of a Democracy
Speaking of Ambedkar though, he never did see the Constitution as the final solution to the problems of India. He famously called it a window dressing over an inherently undemocratic country, yet he knew that it was the only chance to give a voice to those who had none. Liberalism, democracy, and free markets are the only escape for those historically oppressed. But if a Benevolent Court could order away all problems, why did he and his colleagues bother?

Because the truth is, the Court cannot fix everything. It can be a huge thorn in the political machinations of the other branches of government, but if push comes to shove, it will be ignored. As it is - there are several rulings (which are really more regulatory in nature than judicial) that states are simply sitting on. The tyranny of distance also helps - the Court can summon any officer in Delhi and would get an immediate hearing, but in far away states, it would be ineffective. What else explains the fact that old diesel vehicles seem to pollute only Delhi's air?

The truth is, as Justice Katju said, the court is so overwhelmed by pending cases, it would rather not deal with them. The courts cannot fix our democracy - only people can. And by that, I do not mean some reckless revolution. The thing about democracy is that it takes a very long time, and is quite ugly. But it lasts. The Supreme Court can dictate quick fix solutions for the BCCI, but once its attention shifts, it will be business as usual, because whoever it appoints will be people from this very society, cloth from the same yarn.

The Judicial Republic, which the recently retired Chief Justice seemed to like very much, is a myth, a chimera to sooth well-meaning hearts. A better democracy will be a long journey ahead - and there are not going to be any shortcuts.

Happy Republic Day!
Jai Hind!

Tuesday, January 3, 2017

What just happened?

ZOOLANDER 2 (2016)

Produced By: Red Hour Films and others
Director: Ben Stiller
Starring: Penelope Cruz, Ben Stiller, Owen Wilson, Will Ferrell, and others
Pros: Creative
Cons: Not funny, poor acting, boring
Rating: * of 5 (1 of 5)

Oh boy, comedy - that genre that everyone thinks they can do, but few actually do well. I confess that I dislike most movies in the genre for, with the exception of a few, most of them cross the fine line between funny and ridiculous. Zoolander 2 not only crossed that line, it completed a marathon beyond it.

One word describes this movie best: boring. It was not funny at all - most of the jokes were flat and childish. Sure, Penelope Cruz had some funny stuff in her arsenal, but it just felt so hollow in the setting that it made no real difference. The movie was creative, in that the director took care to make it as absurd as possible and present that as the USP. Well, it certainly was a USP that the director deserves credit for - but that's just about it. And, to top it all off, the acting was pretty poor and barely believable. Overall, a sad mess of a movie. (OTFS)