By Saswat Pattanayak
(Published in CounterCurrents)
It is the patriarchal fixation with fathers and husbands as feudal heads of indian households where sanctities are attached to family units, that leads to normalization of corruption in a judicial system that is unsurprisingly spearheaded by the brahminical chiefs. No matter what the chief of the family does, it has to be a hush-hush affair and not be made public. Family becomes sacrosanct and the head of family remains above reproach. Brahminism which governs Indian society is founded upon the philosophy of unquestioned belief in the supreme authority, the highest caste, the sacred book. No one messes with the head of the family. If there is child sexual abuse, the child must have provoked it. If there is a marital rape, it is the fault of the wife. Under no circumstances are the patriarchs responsible for anything wrong. They simply need the credits for the (inevitably evolutionary) progresses that are made.
Indian judiciary is not outside Brahminism’s sphere of influence. On the contrary, it is a byproduct of that. The court system is oppressively hierarchical. It is infused with archaic and feudal laws that routinely punishes dissenters and serves the ruling classes. It is a system that awards nepotism (the longest serving Supreme Court Chief Justice’s son will become the CJI in a few years), and instead sentences Dr. Binayak Sen for his association with “banned activities”, and sends a paraplegic Prof. Saibaba to life imprisonment on grounds of “waging war against India.”
This is the same feudal patriarchal court system which does not consider marital rape a cognizable offense so long as the wife is above 18 years of age. This is the same court system which spends time and resources to prohibit reservations/affirmative action for oppressed social classes in the private sector. This is the same court system which allows gay marriage to remain illegal. This is the same court system which upholds death penalty verdicts as acceptable form of punishment. This is the same court system which rejects a plea that questions clean chits given to communal and criminal politicians like Modi and Shah. This is the same court system which permits judicial killing of Afzal Guru without the due process in the middle of the night, without informing his families. This is the same judiciary which is more concerned about its own sacrosanct nature than the rights of farmers, dalits, muslims, women to seek justice in a country where 27 million court cases are still awaiting verdicts.
Chief Justice Misra as the patriarch of this same judicial system predictably had in the past sentenced Yakub Memon to death in an unprecedented middle-of-night hearing. The move was very similar to Afzal Guru killing which was critiqued by AG Noorani who invoked the words of Judge Tendulkar (referring to Morarji Desai misrule), “One would have thought that the dark hours of the night are reserved for the perpetration of dark deeds, not for the execution of lawful orders.” Noorani rightfully remarked “Secrecy is antithetical to the rule of law as it is to decency.” And Justice Misra has been an epitome of secrecy, unsurprisingly, considering his rulings have consistently claimed to have protected “reputation” more than “freedom”. In Indian context, reputation is synonymous with wealthy people, and freedom is the cry of the oppressed.
It was Justice Misra who delivered the judgment in Devkidas Ramchandra Tuljapurkar vs State of Maharashtra case where he outlawed and criminalized the freedom of speech of citizens, whereby “historically respected personalities” could not be written about in a way that may offend their followers.
Similarly he upheld the archaic 499 to 502 of IPC whereby “criminal defamation” would ensure that freedom of speech could not be extended to cause disrepute of anyone. Such emphasis of “reputation” and “respect” are cornerstone of conservative figureheads of any society. In his words that are strikingly similar to actions of Pahalaj Nihalani’s: “Reputations cannot be allowed to be sullied on the anvils of free speech as free speech is not absolute.”
This is the same man who decided for the entire country what constituted patriotism. In a bizarre ruling (which is now under scrutiny) Misra and Roy bench decided “to instill committed patriotism and nationalism” by mandating that “all the cinema halls in India shall play the national anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the national anthem (as a part of their) sacred obligation.” While dismissing “any different notion or the perception of individual rights”, the bench of Misra and Roy declared that the movie screens shall have the image of the national flag when the anthem is being played and that doors of the halls will remain shut during the anthem so that no disturbance is caused.
Not only is enforcement of such mindless patriotism strictures against the spirit of Indian Constitution, even the brazen manner in which Justice Misra has in the past ruled against reservations in employment (across private and public sectors alike), is. Misra contends that there should not be reservations in promotions, and not even in jobs when there is a single vacancy. In fact, Misra and Pant went on to call affirmative action itself a privilege and almost mocked the spirit of the constitution which included reservations for the oppressed, with the following words, “The fond hope has remained in the sphere of hope… The said privilege remains unchanged, as if (it is) to compete with eternity.” So that the “national interest can become paramount”, they said “there should really be no reservation” in higher education.
Such judgements that dismiss the social realities in the name of so-called “national interest”, where people are oppressed precisely because they belong to certain caste/religions/communities, should be the reasons not for immediate removal of reservations from society (ironically following the observations of a person who is brahmin himself), but it calls for immediate and elaborate judicial reforms, so the judges are constantly exposed to troubling realities of a caste society and learn from anti-caste activists.
The case of corruption against Justice Misra in the land allotment matter in Odisha should have been reason enough for condemnation. His brother demanding huge amount money from Arunachal Pradesh Chief Minister Kalikho Pul whose suicide note mentions of the fact, should have resulted in further action against the judge. And yet in the name of protecting the “honor” and “respect” and “repute” of national flag, anthem, and of chief justice himself – our Indian patriarchy continues protecting the male figureheads without a pause. And instead of treating the dissenters and activists and whistleblowers as heroes, many of us now attack the four judges as antinationals.
This is not just about Dipak Misra or Amit Shah or Narendra Modi. This fixation with complete submission to authority is a problem fostered within our places of worship where we are indoctrinated to believe that our gods can do no evil, within our own schools where our teachers can tell no lies, within our law and order system where our police and military and judges can do nothing wrong, and within own families where our elders cannot even be talked back to. This refusal to dissent and this inability to support those who do, constitute the terminal disease we are afflicted by, and the one we refuse to treat. It did not begin yesterday when the TV channels went berserk with breaking news over how many experts are now so sad that a press conference had made our supreme court so vulnerable. It is necessary, instead, to acknowledge the disease in order to cure it. Not to mention, the treatment is long overdue.