To most ordinary people, the law is an abstract notion. Ask any hardworking citizen about judges and courts and he or she would most probably shudder.
This reaction is not unjustifiable. The court is a forum to which any sane person not occupied with the law as a profession or as a necessary litigant would be dragged to, literally kicking and screaming. Though the idea of the law is to ensure justice and though reams of learned treatises and writings have dwelt on precisely why the law should be fair and even handed in its operation, this appealing injunction is very often only limited to theory.
The Indian comparative example
In few countries, the notion of the law as a somewhat distasteful abstract to be avoided whenever humanely possible has been challenged even if in part. India is one example in South Asia itself. Despite its teeming millions with their most tortured problems of basic survival, the Indian legal system grew and flourished.
While utilizing Western jurisprudence whenever relevant, the Indian judiciary evolved their own unique interpretation of what rights meant in the Indian society with some judges like Krishna Iyer for example, using the English language in his judgments in a way that scandalized the prudish. If such a judge had been part of Colombo's elite judiciary in the past, many eyebrows may have been raised. But it was because of judges such as these that the Indian legal system withstood many pressures, societal and political as they may be. Insofar as its Sri Lankan neighbour is concerned, certainly the erstwhile elitism of the judiciary has long disappeared. Yet the question remains as to whether what this erstwhile elitism has been replaced by, has ensured the relevance of law and respect for the judiciary in the country today.
The independence of the judiciary
But to return to the point of contrast that is India. Realising the importance of the law and of judges, there was a constituency of opinion which reacted furiously each time that the independence of the judiciary was threatened. This body did not comprise merely the legal community or academics but included social workers, civil society activists and trade unionists.
This community of opinion held judges themselves to account on many occasions, some of these instances as recent as during the past year when an attempt by the Indian Supreme Court to bar the application of the Right to Information Act to compel judges to disclose their assets were deliberated vigorously in the public sphere. Though some members of the higher judiciary thought that they should be exempted from the application of the RTI Act, public opinion took the matter on, urging that a judge should not consider himself or herself as the 'sacred cow' as it were. Judges at the lower levels voluntarily disclosed their assets, thus casting the higher judiciary into disarray. This indeed was democracy at work, as turbulent and as flawed as it may be.
It will suffice to say that a fantastic aberration such as an unashamedly politically subverted Chief Justice (vide, Sri Lanka, 1999-2009) would never have been tolerated by legal professionals, legal academics and even informed public opinion at large in India. In contrast, what we had here was largely a cowed and disgraceful silence on the part of what is termed as the legal community.
Contempt of court
It is therefore little cause for surprise that this silence continues in regard to the political subversion of Sri Lanka's legal systems. For example, if a judge was accused of bribery and corruption or if there were serious charges of sexual abuse on the part of a judicial officer, the immediate sweep of public opinion and outrage would have been great in India. Similarly if a former Presidential election contender had been repeatedly and sweepingly harassed citing each and every conceivable and absurd offence under the sun, the reactions would have not been merely political.
India, unlike Sri Lanka has had a contempt of court act as far back as the 1970's. Yet in some measure, its is not only this act but strong public opinion that has prevented contempt from being used as a weapon to shield the judiciary from justifiable criticism. Of course, there have been exceptions such as when the Indian Supreme Court reacted against Arundhati Roy's criticism of a judgment of the Court on the Narmada dam controversy. At that time, there was unrestrained criticism of the contempt order as infringing the right to free expression. The Indian judiciary wisely backed off from further contempt orders. Again, this is what is meant by democracy. Even if Sri Lanka ultimately enacts a contempt of court law, there is little to be gained if we lack this informed constituency of public opinion.
The importance of the
constitutional document
Certainly in the Indian system, there are contradictions as basic as horrendous overloading of cases resulting in laws delays of the most fundamental kind while on the other hand, social and caste discrimination have resulted in summary injustice being meted out at village level.
Yet, despite all the odds, the system has been able to function to the extent that the law itself has not become irrelevant. There is a sense of shame when politicians disregard the law or twist it to suit themselves or to protect themselves. The media, with all its subversions, still remains a powerful partner with the law in highlighting injustice.
The Indian people were helped by a constitutional document that was not changed from decade to decade to suit the whims and fancies of the government of the day. Nor was the Indian Constitution devised by adroit legal minds to deny justice to ordinary people while at the same time, giving the impression that rights were being protected. Indeed, if one had to identify such a deviously devised constitutional document in South Asia, Sri Lanka's 1978 Constitution would possibly take pride of place. As we saw for the past thirty two years, this Constitution has been the fount of most of the evil that has plagued our systems of governance.
The relevance of the law
The points of contrast between India and Sri Lanka are many. The Indian Constitution, even as far back as sixty three years ago, guaranteed to all its citizens, the right to life. But the framers of our Constitutions, both in 1972 and in 1978, coyly declined to do so. In 1972, the framers refused to even make the protection of rights enforceable in the Supreme Court. In 1978, they gave us this privilege but then hedged this right around by various restrictions such as time limits, refusal to grant a right to appear in the public interest and refusal to give the judges the power to strike down unjust laws.
None of these restrictions apply in the Indian context. However, neither has the judges there gone overboard in their enthusiasm to protect rights. On the contrary, there has been, for the most part a careful balancing of the interests at stake, whether these concern economic matters, environmental matters or even liberty rights in the face of terrorism which India also has had to contend with.
These are good questions for Sri Lanka. The law in India has not yet been rendered irrelevant in large measure. Does the same still hold true for us? |
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