Subir Roy: Nature and society abhor vacuum

VALUE FOR MONEY

A common thread runs through two wholly diverse developments""the Supreme Court ordering the Jharkhand assembly to meet pronto and find out who commands a majority, and the US denying and cancelling visas for Narendra Modi.

The commonality is that just as nature abhors a vacuum, so does organised human life or society abhor an abdication of authority.

When those who are in charge fail to do what they are supposed to do, someone is going to encroach upon the abdicator's turf and deliver relief to the aggrieved.

First, let us take the Jharkhand case, where there was a clear instance of failure of constitutional authority.

The governor, who is supposed to be an impartial arbiter and call the largest single party or pre-election group to try and form a government, called a minority leader to do so, making it possible for him to buy MLAs while occupying the seat of power.

With the governor guilty of such impropriety, the aggrieved approached the Supreme Court and the latter told the assembly's temporary speaker to do what the governor should have done in the first place, meet and find out which group commands a majority.

In doing so the Supreme Court clearly crossed the Lakshman rekha and violated the principle of separation of powers, also enshrined in the Constitution.

But it acted as it did in response to the felt need for justice to be delivered when those whose job it was to do so failed so abjectly.

The political class, excluding the NDA, which benefited from the Supreme Court's action, is naturally seriously exercised.

The separation of powers between different organs of state is a cornerstone of the Constitution but it is a matter of common sense that this separation cannot remain sacrosanct even as the Constitution and the principle of fair play are brazenly mocked.

Vigilante groups typically come up only when the regular law and order machinery breaks down. They are not the best textbook solutions but necessity clearly needs such imperfect innovations.

A case in point is the intervention by the Supreme Court to devise a mechanism to put a check on auto pollution in Delhi when the executive clearly failed in its duty to do so.

The protests at the time that the courts were trying to run the government are now all but forgotten.

Let us assume for the moment the boot is on the other foot and visualise a hypothetical situation. Today, the way senior judges are selected and their conduct supervised is hugely unsatisfactory.

As a result, serious judicial transgressions are taking place (as happened, for example, at the Punjab High Court) without there being in place a mechanism to impose discipline and punishment effectively and speedily.

A senior judge can get away with a lot and need fear only impeachment, which is remote. There is a feeling that successive chief justices have allowed the situation to drift and we are nowhere near a satisfactory judicial commission jointly structured by the judiciary and the legislature.

Assume there is a major scandal involving a senior judge, and Parliament, riding the crest of popular outrage, amends the Constitution and puts in place a judicial commission (this is endorsed by the states) to select, supervise, and discipline senior judges.

The judges may not like this and consider such a dispensation, evolved without their consent, a breach of the principle of separation of powers.

But they will be hard put to throw it out for violating the basic structure of the Constitution unless the structure of the commission is obviously unfair or flawed.

Why has Parliament not done this up to now? The politicians have squandered the moral authority to do so by their own conduct. The presence in Parliament of so many with criminal charges against them, and the way business is conducted in Parliament hardly give them the upper hand.

Now let us take the case of Narendra Modi. His administration not only stood by when Gujarat burned but actively aided in the plunder and rape of the state's Muslims.

Yet, he has not only been able to get away scot free so far but rules the roast with aplomb and defiance. There is a vacuum""an abject failure of the Indian system and Constitution to bring him and his cohorts to book.

US civil rights groups, strongly pushed by US citizens of Indian origin, have lobbied hard and succeeded in getting their government to use the powers at its disposal to administer a rebuke and rebuff to Modi.

When the Indian system did not deliver, the US did. India's sovereignty has not been transgressed; merely a visa to visit the US has been denied to a non-US citizen.

If anything, the whole episode should give rise to a bout of soul searching among Indians as to why their system has not been able till now to deliver justice for what had happened in Gujarat.

The big reason why nothing has happened to Modi so far is his electoral victory and continuation in the same chair, which enable him to make sure nothing happens to him and the many state-level functionaries who were directly involved in the wrongdoing.

In this his role is akin to that of George W Bush. His reelection has rendered remote any chance of bringing him and his cohorts to book for the violation of human rights and international law through the invasion and occupation of Iraq.

The brutalities and indignities committed in Abu Ghraib and Guantanamo Bay, restricting the punishment for inflicting them to underlings and not touching those in charge of the system, and the tens of thousand of civilians killed in Iraq since the US invasion point to a deep vacuum that exists in international law and the global protection of human rights.

As surely as day follows night, something will emerge to take care of this vacuum and the damage being done to the international rule of law by the US. This is not the end of history.

sub@business-standard.com