Balancing Political Injustices through Rule of Law

This paper presents an intersection between the theories given by John Stuart Mill, Aristotle and Dworkin. The first part of the paper includes analysis of a case in the light of Liberty theory given by John Stuart Mill. This theory will be interconnected with the theory of political justice given by Aristotle and the theory of adjudication given by Dworkin. The theme of this paper is to critically examine the consequences of strong political power on the rule of law by applying the above stated theories on two judgements: Munawar Vs. The State of Madhya Pradesh and Kesavananda Bharati v. State of Kerala.

“John Stuart Mill says that society is not completely free if some kinds of liberties such as freedom of opinions, sentiments, beliefs on ‘all subjects’ are not taken into consideration. According to Mill, hushing any view is illegitimate and detrimental because it knocks society off a contradicting opinion. In case the opinion wished to be silenced is justified, censorship will rob society of the truth.”[1]

In Munawar Faruqui’s Case[2], the police arrested[3] the comedian Farugui, in furtherance of an FIR was filed against him for passing indecent remarks on Amit Shah (Home Minister) and for injuring Hindu religious sentiments. When faruqui’s lawyer tried for bail, the court declined the bail pleas, asserting that, there would be a disruption of law and order if he is released.

‘Faruqui was arrested because it was considered that his remarks were creating hatred among the communities and degrading Mr. Amit shah’s status’[4] and hence the state has a right to restrict such expression however, from the Mill’s perspective the present case clearly represents a liberty which must not be interfered with. An opinion cannot be considered false with a guaranty, even if, someone can be sure about an opinion being false, it is yet an immoral action to suppress a viewpoint.[5] Culturally, it represents a transformation of Indian middle-class society through the presentation of private jokes in public spaces where jokes filled with irony and satire were not unique. For example – Kavi Sammelan programs, where famous poets say aloud couplets called poems or jokes or shers on various topics of politics and sexuality. These poets would approach any random person and will pull his legs. No doubt these jokes are made subtly whereas, the jokes made by other comedians are made in direct reference to a particular person or community.

Does being subtle make any difference? It does not matter whether the jokes were subtle or not if the communication behind that joke is the same, and that communication is understood. There may be an inequality factor hiding in our society if subtle witticism is acceptable and clearly stated ones are not. All these shows are performed with an unspoken agreement that no part of the show has to be taken seriously. Also, it is important to hear a view that one opposes in order to be able to forcefully oppose a view one disagrees with. It exercises political rationality. These comedians portray crucial liberties which if not respected in our society, we cannot consider ourselves to be free. This particular case is an example of how the Indian society despite having rights of liberty and free speech is captivated by the politics and ideology of the momentary majority.

Aristotle highlights the problems of a democratic nation which is in line with the Faruqui case. “He says that practising extreme democracy causes injustice due to two reasons: One, personal interests of a community may prevail over the general interests of the society. Two, the laws would be uncertain as they would keep changing according to needs of the majority or according to the changing majority which will only increase their domination and significantly decrease the liberties of other communities.”[6]

“Aristotle also said that this problem can be solved by making constitutional arrangements which separate legislative, executive and judicial sciences.”[7] In India, the powers have been separated but still politics continue to influence both legislative science and judicial science. This is because conscience developed from the majority usually becomes the ideology of the government, in furtherance of which the laws are framed.

“The Hindu community found the language of Munawar Faruqui extremely offensive. This comedian had also passed remarks on the Home Minister due to which the police had arrested him.”[8] Strangely, the case does not mention that he was arrested because he defamed the minister but the general belief is that he was targeted because of his indecent remarks on the minister. This case is an example of political injustice as the court had failed to acknowledge the political conspiracy behind the case and had denied bail to the accused several times. In another case, “Arnab Goswami v State of Maharashtra[9], Bombay High Court had acknowledged that Arnab Goswami had criticised the Maharashtra Government several times in the past which led to his arrest. The court recognized that Arnab was only trapped in a political game and in real no case was made out against him. Hence, bail was granted to him.”[10]

Both these individuals were targeted due to their political enmity despite constitutional separation of powers. Hence, the rule of law is very subjective. In some cases, judicial sciences may not be able to limit political sciences, in the other cases, they may do so. Aristotle’s theory clarifies that the quantum of application of these particular sciences in a case decides how just the case is. For example: In a politically strong case, delivery of justice would require higher judicial legitimacy.

“Kesavananda Bharati v. Union of India[11] is a notable judgement in this regard. In this case, Indian Parliament while exercising its legislative powers had taken away the powers of judicial review. In response, supreme court bashed the amendment and restored its review powers.”[12] This is a true example of a distinction between judicial and legislative powers. “Aristotle’s theory states that political injustices can be controlled by separation of powers in practical terms.”[13] This case is a perfect example of Aristotle’s justice theory as the arbitrary amendments passed by the parliament were struck down due to judicial independence and less influence of politics on the judiciary. The court acted as a safeguard of the constitution. In my opinion, constitutional arrangements, smart judicial interpretations and realistic separation of power can accomplish political justice.

            The importance of judicial interpretation to lessen political injustices brings us to the theory of adjudication given by Ronald Dworkin. “His theory of adjudication is dependent upon judge’s interpretation of the rule. It can safely be said that he presumed that judges do not lack integrity.”[14] Now, we would analyze this theory of adjudication in the light of the Kesavananda Bharati Judgement[15].

‘Questions about parliament’s power to amend constitution have been challenged several times before Supreme Court, since Article 13(2) of the constitution’[16] restricted the power of the state to amend Fundamental Rights, and Article 368[17] gave absolute power to amend the constitution. It was judiciary’s role to find out co-relation between them. Most judgments were heavily dependent upon the power of the government, rather than judge’s ability to look beyond constitution.

“Finally, a 13 judge bench of the Hon’ble Supreme Court ruled in Kesavananda Bharati v. State of Kerala that Art. 368 of Indian Constitution provides parliament absolute power to amend the constitution, however it cannot amend the basic structure of the constitution.”[18] “Judges used their discretion to find the right answer by interpreting various legal texts and looking beyond the rules in question, which are as follows- Constituent assembly deliberately differentiated between constitution and the ordinary law. This can be gauged by looking at the method of amending them, former cannot be amended by joint sitting of both the houses, or an ordinance cannot be brought to amend the constitution. Thus, constitution is kept on a higher pedestal. Judges also recognized the difference between the legislature and constituent assembly, power to amend the constitution is not equal to power to rewrite the constitution, which legislature would consciously or subconsciously do if certain basic principles are not preserved.”[19] These were the legal principles which guided judges to form doctrine of basic structure, however in the cases preceding Kesavananda where similar issue of law was raised, Dworkin’s theory did not apply. “For example, in the case of Shankari Prasad v. Union of India[20] and Sajjan Singh v. State of Rajasthan[21], the Supreme Court held that Article 368 provides absolute power to legislature to amend Fundamental Rights.”[22] In the above cases, judges lacked integrity since the judgments were based upon power structure favouring the strong central government. “Chief Justice in Sajjan Singh Case went too far in saying that if constituent drafters wished to protect fundamental rights from getting amended, they would have mentioned it.”[23] This contradicts Dworkin wherein a judge has to go beyond rules and find the right answer.

            The above discussion indicates that reduced liberty is a sign of increased political injustice which can be curbed by constitutional arrangements and judicial interpretation. However, such an interpretation should not be limited to the legal principles only. Judges must be smart enough to identify reasons behind arrests and amendments and note the interferences of political sciences. “This brings me to the Platonic Justice theory given by Plato. This theory states that every human mind has a purpose and justice is its excellence and injustice is its defect.”[24] Therefore, justice can be easily deduced from the ‘purpose of the mind’. If we analyse Munawar Faruqui’s case in this regard, we observe that he was arrested so that he gets a taste of punishment for defaming the minister and passing indecent comments on the Hindu religion. The revengeful feeling is the defect of the mind and hence, unjust. In Kesavananda, government was changing structure of the constitution with an intent to take away powers of judiciary. Hence, such an amendment is also unjust.

“Justice has several forms and is not just defined by the outcome.”[25] An arrest naturally decreases the reputation of a person and a bail can certainly not improve this image. Munawar Faruqui got bail after several appeals. The narrower question is whether he got moral justice after his bail since his reputation was never restored. Additionally, the identification of political conspiracy is done by the magistrate at a later stage. At the initial stages, police officers usually ignore political conspiracies and directly arrest persons on receiving complaints which is a huge flaw in the justice system. If police officers start to recognize the polity behind arrests, both moral and political justice can be established. Certainly, moral justice has higher standards which remains unfulfilled by the justice according to law. “Hence, justice according to law remains rightly distinguished with justice of the law.”[26]

[1] Martin P. Golding, Philosophy of Law 56-57 (Englewood Cliffs Prentice-Hall 1975).

[2] Munawar Vs. The State of Madhya Pradesh & others, (2021) 2nd February.

[3] “The case was filed under sections 153A (promoting enmity between different groups on ground of religion) and 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion) of the Indian Penal Code and Sections 65 and 66 of the Information Technology Act, 2008.”

[4] Munawar Vs. The State of Madhya Pradesh & others, (2021) 2nd February.

[5] Golding, supra note 1, at 57.

[6] Suri Ratnapala, Justicein Jurisprudence , 326.

[7] Ibid, 326- 328.

[8] Munawar Vs. The State of Madhya Pradesh & others, (2021) 2nd February.

[9] Arnab Goswami v. State of Maharashtra (2020) SC 964.

[10] Ibid.

[11] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

[12] Ibid.

[13] Suri Ratnapala, Justicein Jurisprudence , 326.

[14] : Ronald Dworkin, Hard Cases, 88 Harv. L. Rev.(1975)

[15]  Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

[16] Indian Constitution, art. 13, cl. 2.

[17] Indian Constitution, art. 368.

[18] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

[19] Ibid.

[20] Shankari Prasad v. Union of India, AIR 1951 SC 458.

[21] Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.

[22] Shankari Prasad v. Union of India, AIR 1951 SC 458, Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.

[23] Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.

[24] Suri Ratnapala, Justicein Jurisprudence , 322.

[25] Ibid, 318.

[26] Ibid, 319.

Aishwarya Says:

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