My heart would fill up with pride every time I came across a decision handed down by a foreign constitutional court relying upon and citing a decision of our own Supreme Court. Imagine a doctrine-like the theory of ‘Basic Structure’- incubated in the late Delhi winter in the early 70s making its way across the Arabian Sea to fertilise the jurisprudence of emerging African States! That was the sway of the Court which began its journey as a temporary resident of the Chamber of Princes.
Reading a recent article on the diminishing rate of citation of Indian cases by foreign courts filled my heart with sorrow! Nothing cockles the Indian heart more than a kind mention from a foreign source, the more white, the better. It took a Nobel Prize for India to sit up and recognize the dimunitive Albanian nun who, for years, had ministered to the dying of Calcutta in anonymity. The same is the case with the celluloid magic of Ray or the theoretical prowess of Amartya Sen.
Has the world truly given up on our Supreme Court?
The world watched with bated breath as Trump rushed through the process of filling up the shoes of the legendary Ruth Ginsberg. It was expected that a partisan Supreme Court would replay a Bush v Gore in favour of Trump in the event of a close contest. Yet, we have seen how restrained the Court has been when Team Trump has moved it in recent weeks. The best they could get was a segregation of postal ballots received in Pennsylvania after Election Tuesday.
It is left to the Court to protect its institutional integrity and public standing. Neither can it be talked up nor can it be thrust down with a threat of criminal contempt. The top courts of South Asia have all been exposed to the contagious politics of the sub-continent. The most volatile has been Pakistan’s Supreme Court. Recall Begum Nusrat Bhutto v Federation of Pakistan? From the days of military rule when it would dust out the “necessity” doctrine to clothe martial law with legitimacy, to when it actually brought down democratically elected governments - latest being the shady disqualification of Prime Minister Nawaz Sharif for not being a true Muslim - this Court has both flirted and fought most openly with the political dispensation.
The unsavoury treatment of Bangladesh’s first Hindu Chief Justice who was hounded out into exile without a proper inquiry into alleged corruption charges and the efficient manner in which it upheld death sentences handed out to Hasina Apa’s political opponents for having served as Pakistani collaborators during the Mukti Juddho also brought the Bangladesh Supreme Court under the scanner.
Nepal beat her ‘big brother’ when she appointed Shushila Karki as the nation’s first woman Chief Justice. Yet, when Her Ladyship attempted to inquire into cases of corruption and abuse of power, an impeachment motion reached the Nepalese Parliament. The bold and daring judge was accused of being politically prejudiced against the ruling party.
The top courts in the island nations south of Kanyakumari have also been impacted by political processes in these countries. Many may recall how the Maldives Supreme Court Chief Justice Abdullha Saed and Judge Ali Hameed were arrested soon after ‘President’ Abdulla Yameen refused to obey the Court order to release political dissidents and imposed a state of Emergency instead.
Whether in defence of the spirit of the Constitution or in collaborating to stifle the same, top courts of the Indian sub-continent have soiled their hands and entered into the “political akhara" (wrestling ring). Remaining inert has sadly not been an option on the table.
In this desert storm, India had so far remained an oasis of calm. Our top court, over the years, had deftly drawn for itself a “lakshman rekha” which it has strived to respect and adhere to. In fact, it came up with doctrines such as “the political thicket” to overtly send out a message that it would not be willing to soil its hands as had the sister constitutional courts of South Asia.
Be not for a moment under an impression that our Supreme Court has erected a “wall of separation” from things political. To the credit of the Court, not only has it been so far successful in projecting the image of being a “reluctant” intervenor and it has also been able to craft ingenious constitutional doctrines which would legitimize political excursions.
Take for example the Bommai case, where it circumvented the sacred covenant foreclosing judicial intrusion into ministerial advice to the chief executive by explaining that while the Court would not review the decision, it could scrutinize the decision-making process by evaluating the adequacy of the material on the basis of which ministerial advice is tendered and a decision is taken to invoke emergency powers to displace elected governments.
So, the Indian top court has routinely been invited to preside over matters political. In recent times, while Justice Puncchi’s novel “composite floor test” concept - a first in Parliamentary history where a vote of no-confidence was accompanied by a vote of confidence - brought down UP Chief Minister Jagadambika Pal’s government, it catapulted the top court to a position of the highest esteem in the hearts and minds of the aam admi (common man).
Since then, the Court has had to intervene many a times and legislators holed up in resorts for days have surely silently prayed in gratitude to the Court for deftly resolving such political entanglements. One would remember the Uttarakhand, Karnataka, Maharashtra, Madhya Pradesh and, the latest Rajasthan, episodes from recent memory where the top court had to “reluctantly” (though some would say in the Rajasthan case, not so reluctantly) wade in to clean up the political mess created by our leaders.
In fact, during the era of weak and indecisive regimes, perceived to be corrupt and inept, the public has cheered on as the top court has hesitantly waded into the political waters. When it has taken up issues, the Court has not hesitated to take on the executive full on. I consider its intervention to protect the efficacy, independence, and integrity of the Election Commission of India when it was under attack by a government determined to clip TN Seshan’s wings to be one of the most significant contributions by the Court towards protecting democracy in India. In Vineet Narain’s case, the Court created an entirely new architecture of vigilance in governance. which culminated rather anti-climactically in the establishment and subsequent invisibility of the Lok Pal.
So when did the thinking class stop cheering the Court as being the last bastion of hope to battle a system deeply infected by the virus of corruption, nepotism, and ineptitude? Why is it that the Court is such open game for ridicule and scorn in an atmosphere where a stand-up comic is now considered the greatest threat to this great institution?
With the rare spark of striking down of the law constituting the National Judicial Appointments Commission (NJAC), which also was viewed more as protecting its own turf than furthering public interest, the Court, in the past six years, has betrayed an inexplicable spirit of accommodation and adjustment for the political executive.
Ironically, even after striking down legislative encroachment into its judicial turf, what followed was perceived by legal pundits as a timid surrender to the will of the executive. In fact, the perception in the legal community has been that in matters of judicial appointments, the voice and the primacy of the executive has gained from strength to strength since the Court handed down its NJAC judgement. The curious case of repeated delays in the appointment of Justice Akil Kureshi as the Chief Justice of Madhya Pradesh High Court and the midnight transfer of Justice S Muralidhar while hearing the petition on Delhi riots are just two examples.
In fact, the Government has not hesitated to sit for months on end on unpalatable names, only to ultimately return the same to the Collegium for reconsideration. In recent times, the Court rarely asserts itself by reiterating its recommendations in the wake of governmental objections. The Memorandum of Procedure is yet to see the light of the day. Mercifully, the Court has discontinued its farcical recording and publication of Collegium minutes.
There is a growing perception that the hearing calendar appears to cater to the convenience of the executive super fast (Rajasthan Assembly Case) while putting other matters on a slow burn (challenge to demonetisation, electoral bonds, abolition of Jammu & Kashmir as a state). The public has also viewed with trepidation as in many cases, orders have been passed which give the executive a handle to wriggle out of an uncomfortable situation (such as the order directing the executive to itself constitute a committee to decide on the restoration of internet services in Kashmir).
In the age of the internet, the world has shrunk. While the world watched with marvel the eleven judges of the UK Supreme Court dispassionately and impartially through the contentious Brexit case in record time, it was alarmed to see how India’s top court could not firm itself to adjudicate with dispatch and promptitude the obliteration of a state while her people remained under lockdown.
Given that the Court has repeatedly exhibited embarrassing promptitude to come to the aid of certain litigants such as in the case of Arnab Manoranjan Goswami, a television journalist, listing allegedly defective petitions overnight and conducting a detailed day long hearings, it is obvious that where there is a will there is a way!
The stark difference in treatment of causes and cases has also sadly contributed to the Hamlet-ian perception that something is “rotten” in the State of Denmark. Just by way of illustration, one may note the how the habeas corpus petition of a former Chief Minister of Kashmir was kept pending for months, giving repeated opportunities to the government to avoid a ruling on the illegality of its action, and ultimately dismissing the petition as infructuous, when she was released on the eve of the court hearing, sparing the State the blushes of a ruling on the legality of deprivation of the personal liberty of a prominent politician of a sensitive state.
Yet, when it came to citizens, the nanis of the Bagh who were out on the streets of Delhi through a biting winter season, clinging onto copies of the Constitution and photographs of Babasahab, despite of the fact that the pandemic from Wuhan had ensured the abandonment of the protest, the Court did not wind up the case as infructuous. It went ahead to pen a detailed opinion on the restrictions on the right to public protest.
This stark cleavage in judicial approach was in exhibition when the Court shut its doors to activists and journalists in conflict with the regime in power and seemed to exercise the same jurisdiction to grant relief in haste to certain litigants perceived to be in favour with power. A Sudha Bhardwaj was told to go back to the High Court whereas an Arnab Goswami was heard with alacrity and granted relief.
The pandemic brought increased attention and focus on the Apex Court. When, after a round of pot-banging to celebrate a “Janata curfew”, the nation was put under lockdown at four hours’ notice, thousands of migrant workers started on their long march home-many on barefoot. A child sleeping on a suit-case tugged by the mother and a mother in eternal sleep on a platform under a blanket tugged by the child became the defining moments of a tragedy unfolding in gargantuan proportions. All eyes were on the Supreme Court, with citizens hoping that the Court would read the riot act to an insensitive administration.
We all know what happened. The Court was too eager to give the executive a play in the joints and accepted as gospel the assurances of the law officer of the state that all was well. It was perhaps the public outrage and the pleas by eminent lawyers and citizens that prevailed upon the Court to revisit the migrant labourer issue. However, by then, the damage was done, and what followed was too little and certainly too late.
While the Court must be complimented for making the most optimum use of technology to conduct hearings through video conferencing, many were aghast that while the cases of workers and undertrials languished for years, the Court had the time and inclination to spend hours on hearing a petition on an alleged contempt against itself by a public interest lawyer.
While protection was extended to residents of an illegal South Delhi colony set up on agricultural land, unmindful of the raging pandemic, the Court directed the uprooting of squatters on the side of railway tracks without regard to the phased rehabilitation spelt out by the High Court.
Despite all this, it is too premature to write off our Supreme Court and conclude that it has lost standing or respect of courts the world over. India’s top court, unlike say the United States Supreme Court, has to deal with a case load which is incomparable. It has, even in recent times, delivered stellar and quality judgments on issues such as rights of transgenders, sexual minorities, and on the law of arbitration. That having been said, it is in public interest that the public perception of an executive-friendly constitutional court is arrested at the earliest.
Perhaps I have been too harsh and uncharitable in my appraisal. It is my love and respect for this great institution that contributes to my anxiety. In a constitutional democracy, it is only the Constitutional Court which can stand as a guarantor against the majoritarian tendencies of an elected government. Now more than ever, India needs a strong and a fearlessly independent Constitutional Court.
The author is a Delhi-based advocate.
Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.