SUPREME Court Judge, Justice D Y Chandrachud, has given a thoughtful and lucid talk on ‘Speaking Truth To Power: Citizens And The Law’ on the occasion of the Justice M C Chagla Memorial Lecture.

In an erudite analysis of the relationship between truth and democracy and the role of citizens in speaking truth to power, Justice Chandrachud says: “Democracy needs the power of truth to survive.  As such one can consider ‘speaking truth to power’ as a right every citizen must have in a democracy, but equally as also the duty of every citizen”.

He goes on to state that, “Crucially, the assumption is that the act of speaking the ‘truth’ will counter-act power, and obviate a predisposition towards tyranny”. 

A few days earlier, speaking at an online event on the ‘Role Of Judiciary In Governance’, another Supreme Court Judge, S Ravindra Bhat, had said “We gained our freedom  at a great cost.  Every Indian, therefore, has to use his liberties to constantly question the actions of those in power because democracy gives no tickets to free meals. It is for us to assert and guard liberty and not be complacent about any encroachment”.  Here again is an assertion that citizens must question those in power to safeguard democracy.

That such enlightened views are held by justices of the Supreme Court is a heartening feature at a time when we are seeing a steady slide to authoritarianism in the country. However, when we look around, in contrast to the exemplary ideas of truth and democracy that were propounded by Justice Chandrachud, we find an entirely different picture.  What is happening to citizens who speak truth to power and stand up for the rights of the oppressed?  There are cases like the Elgaar Parishad-Bhima Koregaon foist upon them under the UAPA.  Some of those arrested for this so-called conspiracy have already spent three years in jail without trial. 

Justice Chandrachud spoke about strengthening public institutions to help citizens arrive at the truth of which the first institution is the existence of a free press. The reality, however, is that the media is under tremendous pressure. Those media houses and journalists who seek to be independent and speak the truth are harassed and intimidated. The sedition clause in the Indian Penal Code is liberally used against them. 

There is an outright attack on the fundamental rights and the constitution itself – from the annulment of Article 370 and the dismantling of the state of Jammu & Kashmir; the adoption of the Citizenship Amendment Act which introduces a religious criteria for citizenship; and there is the everyday encroachment of the fundamental rights of citizens by executive actions. 

The threats to democracy also emanate from the lack of a level-playing field in the electoral system with the access to resources and finance being monopolised by the ruling party. The system of electoral bonds introduced in 2018 is a ploy to corner all such resources to itself.  The use of the Pegasus spyware for surveillance is also designed to undermine any form of opposition or dissent. 

All these matters, which are of vital concern for establishing the truth and protecting democracy, have found their way to the Supreme Court. The arbitrary detention of the Bhima Koregaon accused; Article 370 and dismantling of the state of Jammu & Kashmir; electoral bonds; the use of the sedition clause and the use of Pegasus spyware.

In the case of the Bhima Koregaon accused, a writ petition was filed in 2018 by Prof. Romila Thapar and four prominent citizens calling for an end to the arbitrary investigation and arrests by the Maharashtra police and for constituting a Special Investigation Team under Court supervision.  This was rejected by a three-member Bench, including the then Chief Justice of India (Justice Chandrachud to his credit gave a dissenting judgment). Since then, bail has been denied to the sixteen accused in the case by different levels of the judiciary, except for Varavara Rao who got short term bail on medical grounds.  Many of the other cases are pending in the Supreme Court – J&K , electoral bonds etc., for the past two to three years with the Court showing no urgency to hear these vital matters. The record of judicial evasion under the two previous Chief Justices of India was marked. 

It is not that the burden of protecting democracy and the fundamental rights of citizens rests solely with the higher judiciary. This ultimately depends on the political mobilisation of people.  But in a situation where the legislature itself is steamrolled into submitting to the executive and meaningful debate suppressed, the role of the apex court, as the custodian of the constitution and guardian of fundamental rights of citizens, assumes importance. 

While there are some welcome signs recently of the Supreme Court being more sensitive on protection of the fundamental rights of citizens – as during the Covid times, the rights of migrant workers, of quashing cases of sedition or preventing coercive action against journalists and media – concerns still remain about the independent role of the judiciary and its acquiescence to the executive. 

Recently, the Supreme Court collegium recommended nine names of judges from the High Courts and the bar to be elevated as judges of the Supreme Court.  These nine have now been appointed as judges.  But the exclusion of the name of Justice Akil Kureshi, the Chief Justice of Tripura High Court, from the list of nine names recommended by the collegium is glaring.  Kureshi was number two in seniority in the list of High Court judges.  Earlier too, the recommendation that he be made the Chief Justice of the Madhya Pradesh High Court  by the collegium was not accepted by the government and he was instead made the chief justice of one of the smallest High Courts. On the issue of elevating him to the Supreme Court, the collegium surrendered and thought it fit not to recommend his name at all. 

In Justice Chandrachud’s architecture of speaking truth to power as a right and duty of citizens, strong public institutions and democratic accountability of those in power,  the existence of an independent judiciary insulated from pressures of the powers that be, is a given.  One can only hope that this profoundly democratic vision based on “truth”, counters the contrary trends, and permeates the entire higher judiciary in the days to come. 

(September 1, 2021)