Bark, bite or let sleeping dogs lie?

Watchdog of the Constitution. Apex Ombudsman. Sentinel on the qui vive. Even as its monikers get more obscure, the role of the Supreme Court of India as the final protector of our rights has always been clear.

That the Court has not always covered itself in glory while guarding the house we live in is, in its own words, a shame that deserves to be buried ten fathoms deep. Amidst reluctant whispers of the 'E' word (Emergency Lite, if you will) today, its ears surely must prick up. The mantle that rests on its shoulders, its own former members would say, has never weighed heavier in recent times than now.

On October 15, the apex watchdog will hear a number of matters on protests related to the functioning of the Election Commission of India (ECI), the special intensive revision (SIR) of electoral rolls, voter deletions and the State's quelling of those same protests. At stake are a host of rights guaranteed under the Constitution of India, the very document the Supreme Court was formed to protect.

There is an eternal question the Supreme Court has grappled with over the course of its history - when and to what extent should it interfere in executive functioning? The answers are as diverse as the members who have made up the institution. Some courts have acted to executive overreach with haste, others reposed faith in the assurances of the government and others still stayed their hands till there was nothing left to safeguard. The more important question is: what does the Court do when the executive fails to adhere to its orders and judgments in true spirit? Recent history shows more than one instance of this trend – all related to the issues that will come up before the Court on Thursday.

The Court’s own jurisprudence on a number of these issues is already clear. In Anoop Baranwal, it laid down the principle that appointments to the ECI must be insulated from executive interference. The subsequently enacted Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 flies in the face of this principle. It also forms the basis of this whole fiasco – the appointment of a Chief Election Commissioner (CEC) whose independence has been called into question.

On a related note, it was the Supreme Court that validated – and even oversaw - the hasty implementation of the SIR, despite the abject lack of resources on the ground. But that is a howl for another full moon.

The fundamental right to peacefully protest is also well-established. In Mazdoor Kisan Shakti Sangathan v. Union of India (2018), the Court upheld the use of Jantar Mantar as a protest site. The government has now denotified the historical venue, after taking liberties with a Supreme Court order calling for amenities to be provided to protestors. One of the alternatives offered is Ramlila Maidan – a venue that is reportedly booked out till December end and costs ₹1.21 lakh a day to rent. The Court in that judgment called for a balance between public and order and the right to protest, not to render the latter impossible. In Amit Sahni v. Commissioner of Police (2028) - the Shaheen Bagh case - the Court said that protests should not inconvenience commuters. But what happens when the government inconveniences lakhs of commuters by cancelling trains, shutting down metro stations and barricading roads?

There is no shortage of Supreme Court judgments on illegal detentions. In Pramod Singla v. Union of India (2023), the Court said that preventive detention laws are a colonial legacy.

“This act of protecting civil liberties, is not just the saving of rights of individuals in person and the society at large, but is also an act of preserving our Constitutional ethos, which is a product of a series of struggles against the arbitrary power of the British state,” it held.

Ironic, then, that the same government that claims to de-colonise India’s laws refers to the colonisers’ playbook even today.

The larger point is that all of these principles laid down by the Court have been violated in some way or the other over the past few days. And at no apparent cost.

Which brings us to the Court’s October 11 order. It sat on a Sunday to hear concerns regarding the crackdown on protestors and shutting down of services in the national capital. After hearing parties, it ordered the normal functioning of metro trains, railways and internet facilities; free movement of persons, reviewing of barricades and no illegal detentions beyond areas where prohibitory orders were imposed. It also said, in no uncertain terms, that lawyers and journalists could not be hindered from doing their jobs.

Some of these directions came with caveats, giving the executive leeway to continue restrictions in an unwarranted manner. Almost all of them were flouted to varying degrees. Six major metro stations were shut. Barricading was still in place. Protestors, lawyers and journalists continued to be detained.

Retired Supreme Court Justice Kurian Joseph recently expressed concern over the state of affairs, saying,

“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.”

The Court has not been loath to bare its teeth at the executive in the recent past. It calls out State authorities for not doing their jobs and paying no heed to its orders on a daily basis. Not too long ago, it chewed out the National Council of Educational Research and Training (NCERT) – run by the Central government – for a chapter that it felt brought disrepute to the judiciary. The speed with which the matter was addressed and settled goes to show just how powerful the jaws of the apex court can be.

In its October 11 order, the Court said that a prima facie contempt of court case had been made out against the Delhi Metro authorities for failing to follow its October 9 directions. Whether the Bench will choose to take them to task remains to be seen.

So come October 15, what will the Court choose to do – bark, bite or let sleeping dogs lie?