Always respect the Referee
Every game must be played according to the rules. The players are there to win, but only the referee ensures that the victory is fair. Democracies, too, only prosper under the rule of law. The legislature, executive, and judiciary have to play by the rules laid out by law. Yes, it is good to have the rules written so that no one can plead ignorance. But there is never a rule book which can articulate a law for every situation. That is why the supreme rule is the unwritten one: Respect the referee and for good measure, always.
Some legislators are worried that their venerated edifice is being dismantled, “brick by brick”, and they need to be conscious of this invasion. This invasion has been variously described as judicial activism, judicial overreach or judicial enthusiasm. Perhaps, the proximate reason for this fear is the collapse of the reasons attributable to the recent imposition of Article 356 of our Constitution in a hill state. Or perhaps, the reasons for fear are more generic, including the failure of the judicial accountability act to pass the test of constitutional validity. Veiled or not so subtle warnings have been regularly sounded to the constitutional referees to confine their play to their own “pitch” and not to cross the line, ominously called the “Lakshman Rekha”. To those unmindful about crossing this proverbial red line, the message suggests that they will have to go through trials by fire, something only goddesses can come through. For humans, even of the superior judicial kind, this can be nothing else but fatal.
Nobody in their right mind would ever suggest that a referee can take over the game or fiddle with the rules as you go along the way. The game happens because of the players and the audience like to watch them. People flock because of them and not because of the referees. But nobody wants to see a “fixed” match, at least knowingly. Hence, their role is integral to the credibility of the game. Yes, credibility is the issue in this unseemly contest between the legislature, executive, and judiciary.
Ever since the legislative proceedings have been videographed, people have been witness to unruly scenes of varying degrees. From hurling objects at each other to pulling out mikes and flinging them at their opponents, one has been left with an impression that we have gone beyond the noise of democracy to perhaps its cacophony. Still, even this cannot be the temptation for any attempted usurpation of the constitutionally mandated role of the legislature or a “brick by brick” dismantling.
If anything, the legislature has been undermined by the political executive, unobtrusively backed by the permanent executive. The legislative time has been cut short over the years to a bare minimum needed to pass the bills that any government cannot do without. Legislative debates have lost their sheen as those in power versus the rest are in a permanent state of real or cultivated hostility.
“Settle your scores” and “make it good while the sunshine lasts” is the accepted idiom of governance and it is essentially here that the permanent executive generally renders willing assistance. It is also a truism that when elephants make war, it is the grass that suffers. The political contest, however, leaves the general business of governance impaired and often dysfunctional. And so the third arm of the democracy gets called upon to hold the scales of justice.
The people of this country also derive their sense of security from the capacity of the judiciary to hold the executive accountable. By a derivation of the constitutional necessity of preservation of its sanctity, it also calls to account the legislation that comes from the statute books. But far more importantly, the deliberate acts or non-acts of the executive have attracted the need of the judiciary to bat for the wronged citizen. The executive, both political and the permanent, needs to bat straight and have the grace to admit when it’s wrong. In practice, it persists in doing the opposite. The so-called overreach of the judiciary instead of getting limited to the only adjudication opens the ground for taking over the bat and strike the ball. Yes, it has resulted in some good but on the whole, it is not cricket.
The need of the hour is for the players selected, meaning the executive and the legislators, to fulfill their role of playing straight and playing well. Referees will only ensure that the game goes on. But if you are going to “fix” the result all the time, then the least the referee can do is to blow the whistle. This can only give strength to the brick and mortar of a vibrant democracy.
(The writer is a former Director, India Habitat Centre. The views are strictly personal.)