Former Supreme Court Justice Kurian Joseph on Tuesday said that shaken public faith in constitutional institutions has made it imperative for citizens to take to the streets to defend democracy when the parliament and the courts have failed to protect it.

Citing socialist leader Dr Ram Manohar Lohia, Justice Joseph said,

“When the Parliament and courts fail, then the street would come to our rescue.”

He held that people were taking to the streets because public faith in constitutional institutions has been shaken.

“The credibility of the institutions, there is a perception which is very grossly shaken, and that is the reason what we see in the street. As Dr. Ram Manohar Lohia said, now the street is coming to the rescue of democracy,” said Justice Joseph.

Speaking at a constitutional convention on the theme “Independence of Election Commission of India – Compromised?” organised by the Indian Association of Lawyers (IAL) of Kerala at the Kerala High Court Chamber Complex, Justice Joseph said citizens have a duty to protest peacefully when constitutional institutions failed to uphold their responsibilities.

“They have a duty to come out in an informed way and in a civil way to protest and also take steps for the protection of democracy,” he said.

The remarks come amid protests in Delhi over demands for the resignation of Chief Election Commissioner (CEC) Gyanesh Kumar and allegations of irregularities in the revision of electoral rolls. The demonstrations have seen mass detentions, restrictions on movement and disruptions to public services, prompting the Supreme Court to intervene.

Speaking about the independence of the Election Commission of India (ECI), he said that if the integrity of the person heading the institution is compromised, it would threaten democracy.

“Once the integrity of the person holding that high office is compromised, then there is no independence, and that is death knell for democracy in India,” said Justice Joseph.

In his address, Justice Joseph also expressed concern over divisions within the legal fraternity. He observed that lawyers have historically come forward to defend the Constitution when democracy was under threat, irrespective of political and communal differences.

“I always held a position that the silence of the lawmen would create more violence, more problems in society than the violence of the lawless men,” he said.

Additionally, he also expressed concern over what he described as a loss of public confidence in constitutional institutions. Drawing an analogy between constitutional courts and watchdogs, Justice Joseph said,

“We always say the constitutional courts, and more particularly the Supreme Court of India, are the guardians of the Constitution, the watchdogs of the Constitution. When does the watchdog bark? It barks when something entrusted to its custody is sought to be or perceived to be or threatened to be disturbed. It barks because the custodian, owner, we the people, should be alerted.”

He added that courts must go beyond expressing concern when such interventions failed to achieve the desired result.

“We have heard that famous saying that the barking dog seldom bites. But this watchdog, this guardian (the Supreme Court), is bound to bite also if the barking does not lead to the desired result,” said Justice Joseph.

He also called for constitutional amendments to protect the Election Commission's independence, including provisions governing appointments and service conditions.

“There should be an appropriate amendment to the Constitution itself regarding the appointment and service conditions of the Election Commission, rather than leaving it to Parliament,” he said.

“The EC's appointment and service conditions should be ingrained in the Constitution itself. That would probably serve as a better safeguard and go a long way in ensuring the integrity and independence of the EC and will be in tune with the Constitution,” added Justice Joseph.

Further, he questioned the existing distinction between the removal processes for the Chief Election Commissioner and other Election Commissioners. Justice Joseph argued that all members should be subject to the same safeguards if they enjoy equivalent status.

Concluding his address, he reiterated that the independence of the Election Commission was central to the constitutional framework.

“It is meant to be independent, and is never meant to be otherwise,” said Justice Joseph.

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