Judicial Barbarism

Context: Judicial barbarism is now a systematic phenomenon with deep institutional roots.

How democratic barbarism and judicial barbarism are related?

• Democratic barbarism: It is a politics that sees protest, dissent, and freedom of expression all through the prism of potential enemies of the state. It occurs when the state treats a section of its own citizenry as enemies of the people.
• Judicial barbarism: For example, weak protection for civil liberties and dissenters and an unusual degree of deference to state power, especially in constitutional matters. Giving Judicial form to the language of democratic barbarism.

What are the components of Judicial barbarism?

• Overwhelming appearance of arbitrariness in judicial decision-making.
• The application of law becomes so dependent on the arbitrary whims of individual judges that the rule of law or constitutional terms no longer have any meaning.
• The law becomes an instrument of oppression.
• The court becomes excessively concerned with its version of lese majesty: Like a scared monarch.
• Democratic barbarism has been part of a global trend. For example, in Turkey, Poland and Hungary the judiciary aids democratic barbarism.

What are the signs of Indian judiciary slipping into judicial barbarism?

• Misuse of Power of contempt: Maintaining credibility by its power of contempt. It is now a systematic phenomenon with deep institutional roots.
• Favouritism in listing of cases: The court has refused to do timely hearings of cases that go to the heart of the institutional integrity of a democracy. For example, the electoral bonds case.
• Arbitrariness in courts processes: The rules for the grant or denial of bail by the Supreme Court and correspondingly by several high courts have reached new levels of arbitrariness. For example, Patriots like Sudha Bharadwaj or thinkers like Anand Teltumbde are being denied bail. Similarly, the fate of so many young student anti-CAA protestors remains uncertain.

What can be the possible implications of this institutional efficiencies?

• Legitimises bad laws: Barbarsism will slowly creep into the ideological foundations of the state. For example, legislation on “love jihad”.
• Growth of Inequality: Few people are not treated equal citizens before the law. The democratic barbarism now directly aided by judicial power.
• Affects Fundamental Rights: As per Justice SA Bobde’s, that the Supreme Court is trying to discourage the use of Article 32. Article 32 is one of the glories of the Indian Constitution that protects fundamental rights. It can be suspended only in a state of emergency.

Every issue should not be thought through the prism of partisan combat. There is need to protect the respectability for the institution.

Judiciary is not slipping into ‘barbarism