Exploring the nexus of law and politics in contemporary society

On December 9, 1946, as the clock struck eleven in New Delhi's Constitution Hall, the inaugural session of the Constituent Assembly commenced, marking the beginning of an endeavour to draft a Constitution for an independent India.

Despite the challenges of illiteracy, poverty and social division, a Constitution was drafted and has endured for over seven decades as a resilient pillar for democratic governance. From princely courts to tribal villages, from judicial chambers to grassroots movements, the Constitution- making process transcended geographical and social boundaries.

The Indian Constitution, a barrier against authoritarianism, ensures the protection of fundamental rights and delineates the powers of state organs. Article 368, which allows for constitutional amendments, exemplifies the framers' vision for adaptability, although its ease has sometimes raised concerns about diluting core principles. Despite challenges like political dominance affecting the amendment process, the Constitution's strength lies in its ability to uphold justice, liberty, equality, fraternity and democracy. In Nani Palkhivala’s words,

“The Constitution represents the Charter of power granted by liberty and not the Charter of liberty granted by power."

The dynamics of power: Executive, legislature and judiciary

The doctrine of separation of powers acts as the bedrock of the Indian Constitution. In India, the pure doctrine of separation of powers is not a strict reality, but rather an ideal to aspire to. The executive, the legislature and the judiciary inevitably interact and perform functions that may encroach upon the domain of the other branches. However, this pragmatic approach does not undermine the main purpose of the separation of powers – to prevent the concentration of power and ensure governmental accountability. The judiciary, through its power of judicial review, acts as a wall against executive overreach and ensures that constitutional rights are upheld.

Legal realism v. Political idealism

The relationship between law and politics transcends mere coexistence, shaping societal mindsets and governance structures via a dynamic and interdependent relationship promoting justice and order. Politics drives and molds the content of law in response to evolving societal needs, while law imposes essential constraints on politics, ensuring adherence to justice, equity and the protection of individual rights. In democratic states founded on the rule of law, this dynamic partnership advances intense interaction between legislative processes and legal evaluation, with politics often exerting a strong influence on law.

However, while political actions emphasise on power, law prioritises jurisdiction and legal principles, with the judiciary playing a crucial role in mediating this relationship. Through judicial review, courts uphold constitutional supremacy and protect fundamental rights from legislative encroachments, as exemplified by landmark judgments such as Minerva Mills v. Union of India. This judicial mediation reaffirms the primacy of the Constitution over parliamentary authority, emphasising the judiciary's role as a firm guardian against governmental overreach.

Is law still the locus of political power?

Recent verdicts and judicial pronouncements have cast a long shadow over the treasured principles of justice and the rule of law. The apex court's decision to uphold the revocation of Article 370 in Kashmir, despite acknowledging its illegal means, raises troubling questions about the judiciary's role in safeguarding constitutional rights and freedoms. What once was an example of independence and impartiality now appears to be giving way to the pressures of political expediency and government influence. The ruling elite's increasing consolidation of power has come at the cost of civil liberties and fundamental rights.

Despite occasional assertions of constitutionalism, the judiciary's responses have often fallen short of addressing the systemic challenges posed by authoritarianism and executive overreach. While the Collegium system was designed to insulate the judiciary from political interference, recent developments suggest a blurring of lines between the judiciary and the ruling government. The present ruling government's advocacy to a Uniform Civil Code (UCC), while ostensibly aimed at fostering uniformity and equality, raises concerns about its compatibility with the principles of secularism and religious pluralism. The judges' apparent alignment with political agendas and the lure of post-retirement positions further blur the lines between the executive and judicial branches.

Moreover, the staggering backlog of cases has hampered public trust and confidence in the judiciary's ability to deliver justice. Millions of cases languish in courts for years, with overworked judges struggling to cope with the sheer volume of litigation. The plight of pre-trial detainees, many of whom are held indefinitely without trial, reflects the systemic failures and injustices that pervade the legal system. In such times, bulldozer politics has become a vigorous symbol of political repression and misuse of power. The planned destruction of properties and cultural heritage reflects a callous disregard for the rule of law and dignity. Despite widespread condemnation, the courts have remained silent on these grievous violations, raising questions about their role in upholding constitutional values and protecting the rights of marginalised communities.

Over the past decade, our country has witnessed a considerable rise in violence against women, widening communal tensions and a massive increase in economic inequality that has led to a sharp decline in employment opportunities and a growing sense of frustration among citizens. Successive governments have failed to address these pressing issues effectively, exacerbating the sentiment of anger and disillusionment among the youth. This growing intolerance and frustration have manifested in incidents of violence and a disturbing trend of supporting perpetrators of violent acts.

The restrictions on freedom of speech have also intensified, with the police targeting young university students, journalists and private citizens who called for change. Instances of mob lynching and public celebrations of violence have become disturbingly common, reflecting a broader breakdown of social norms and values. Politicians, instead of condemning such acts unequivocally, have often sought to exploit them for political gain, deepening social divisions and undermining the faith of democracy.

In the words of the Chief Justice of India DY Chandrachud,

“The people who work the constitution may go terribly wrong and sometimes they do as when we jail a cartoonist for sedition or when jail instead of bail is given to a blogger who is critical of our religious architecture. When a mob lynches a person for the food that she or he eats, it is the Constitution which is lynched. When we deny human beings the power of love for reasons of religion or caste, it is the Constitution made to weep.”

The way forward: Safeguarding judicial independence in contemporary India

In the face of such challenges, the judiciary stands at a crossroads. The disregard for judicial independence and the subversion of constitutional norms threaten to undermine the very foundations of democracy. Amidst this chaos, there are still voices of reason and sanity advocating for the preservation of the rule of law and respect for human rights. It is quintessential for all stakeholders to reaffirm their commitment to upholding the principles of justice, equality and democracy, and to resist the forces of violence and intolerance that threaten to tear apart the nation. As we confront these existential threats, it is incumbent upon all citizens to demand accountability, transparency and integrity from our institutions of governance. As the CJI says,

“Democracy thrives when institutions thrive, and democracies fail, nations fail when institutions fail. So the resilience of our constitution lies not merely in placing the individual at the forefront on its endeavours but in terms of creating vibrant institutions and these are institutions that really sustain our democratic structure.”

There remains hope for the future. The new generation, empowered by access to information and driven by a desire for justice and accountability, refuses to passively accept the undermining of democratic norms. As they navigate the complexities of contemporary India, they are poised to challenge authoritarian tendencies and demand a return to the principles of justice, equality and secularism. The question remains unanswered: Will India's judiciary rise to the occasion and reaffirm its commitment to impartiality and independence? Or will it succumb to political pressures, further eroding the foundations of democracy? The answer to this question will shape the trajectory of our India's democracy.

Mohammed Salman Siddiqui & Ammarah Ishaq are 4^th semester (B.A LL.B) students from University College of Law, Osmania University, Hyderabad.