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Let us not kid ourselves

The law has its limits, and recognizing them is essential.

Members of every profession are inclined (or made to) believe that sans their profession, civilized society would collapse. This is either inculcated by oneself, and if that fails, by the respective system that revolves around the profession. Doctors, Engineers and Lawyers all fall prey to this syndrome.

I myself have seen this inclination among the members of the legal fraternity, when they vastly inflate their own importance, and the importance of the law itself. One instance of this is something I pointed out on twitter; regarding the propensity to inflate the Keshavanada Bharati decision.

Now, I don’t seek to belittle the decision or its significance, for sure, it can be considered the most significant decision by the Supreme Court. But ( and this is a very significant But) the decision is not so important as to suggest that we would have become an Uganda or Pakistan without the decision. This goes on to implicitly suggest that India would be a failed state, an autocracy without the genius of the decision. This is a wrong notion, created as a result of the absence of the application of political, social or cultural history in the analysis of the decision.

The closest that the Republic of India came to a full-blown dictatorship was in 1975, when Indira Gandhi declared Emergency. This was merely two years after the Kesevannda decision, and in ADM Jabalpur v. S.S. Shukla, almost a year into the Emergency, the Supreme Court in its most eminent understanding of law, held that all Fundamental Rights, including the Right to life (Article 21) are liable to suspended during the emergency. To suggest that a single Judicial decision “saved the Indian Democracy” is a gross inflation. What saved Indian Democracy is the Indian Voter who voted against an autocrat by voting for the Janata Party in 1977, after Indira Gandhi was led to believe that she would win.

There lies a rather inconvenient truth behind all this : the Judiciary or any institution will kow-tow to the “establishment” either because of the Establishment brow-beating then into submission (as Indira Gandhi did in response to the Keshavanada decision by superseding the seniority of Judges and passing the 42nd Amendment) or when the institution does it motivated by their own self interest.

Any decision by the Supreme Court would be a paper dragon if the executive refuses to enforce it. The Law after all, is two different entities : the one on paper is vastly different from the law that is enforced. It is important that the members of the legal fraternity recognise the bounds and limits of the law. They should not be subject to a delusion that Law is the beginning and end of everything, and we should surely not lead the next generation of lawyers to such a belief. Let us not kid ourselves; the law has limits.


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