[Ed Note: We are delighted to bring to our readers this post as part of a series of letters addressed to law students from Prof. (Dr.) Nigam Nuggehalli, Dean, School of Law, BML Munjal University. In this letter Prof. Nigam invokes Obama’s DNC speech and emphasizes the importance of having faith in our Supreme Court while simultaneously critically questioning it, especially during the current times when he sees it having gone wrong in Prashant Bhushan’s case.]
Today I want to talk to you about President Obama’s speech at the Democratic Convention last week. His speech raised some fundamental issues about flourishing political communities that should be of interest to law students in India.
Obama said the following
I’m in Philadelphia, where our Constitution was drafted and signed. It wasn’t a perfect document. It allowed for the inhumanity of slavery and failed to guarantee women — and even men who didn’t own property — the right to participate in the political process. But embedded in this document was a North Star that would guide future generations; a system of representative government — a democracy — through which we could better realize our highest ideals.
I have always been fascinated by Obama’s insistence on the American constitution having the means within itself to repair and reform itself. In his vision, it’s like an organism that can change over a period of time, that has the ability to rejuvenate itself.
Obama made a similar point in another famous speech of his, made twelve years ago, after his favourite pastor Jeremiah Wright had made some incendiary remarks on race. Obama had stated then, somewhere in the middle of his brilliant speech:
But what we know — what we have seen — is that America can change. That is the true genius of this nation. What we have already achieved gives us hope — the audacity to hope — for what we can and must achieve tomorrow.
Like Obama, can we also believe that our justice system, with its prosecutors and lawyers and judges, flawed as it may be, is capable of reforming itself and getting better over a period of time, and our political system becoming a more perfect union, as Obama had put it in his speech above?
This is a critical question for us: Indian lawyers, law academics and law students. Our justice system is broken; it does not deliver justice and does not deliver it on time. Obama talked about how the American justice system does not work for people of a different race. In India, the justice system does not work for anyone. The rich circumvent it, the middle class struggle with it, and the poor are resigned to it. Can we envisage our system as Obama does, something capable of repairing itself? Can we believe, like Obama does, that our justice system has a North Star, through which we can realise our ideals?
For Obama, America’s North Star is representative government; I think our North Star is the judiciary, no matter how flawed and cumbersome it has become today. I think of the Prashant Bhushan contempt petition as an inflection point in our judicial system coming to terms with its failures. The Indian constitution has given the Supreme Court enormous powers of judicial review over executive and legislative action. Under Article 142, the Supreme Court can go to any length to realise justice. Yet it has used its great powers to convict one of its most ardent admirers for contempt of court.
Prashant Bhushan has spent more than thirty years harnessing the power of the Supreme Court to do justice. If he feels strongly about how the Supreme Court has failed in its mission, it’s because he is an admirer of the Supreme Court, not its abuser. The Supreme Court, if it can overcome its inhibitions and insecurities, can check government excesses and make governance work for everyone, not only for the privileged. The contempt case, whatever might be its denouement, will show up the court as gone tragically wrong, but eventually we have to look up to the same institution to deliver us from the evils that have beset our polity.
When you study constitutional law, keep in mind Obama’s optimism about institutions possessing the ability to reform themselves; ask yourselves how will you ensure the Supreme Court can reform itself such that it remains the North Star of the Indian constitution? You are students of the constitution today, tomorrow you will be its guardians and reformers. How will you make sure that the Supreme Court remains truly independent and capable of standing up to politicians, of having the courage and the integrity to question itself and listen to others who question it? But in the process, you must not lose faith in the Supreme Court. Faith in the justice system is what led to the civil rights movement in America, and similarly we must believe that we can repair the worst of our justice system from within.
Prof Nigam Nuggehalli
School of Law
BML Munjal University