Shifting priorities of the Indian Supreme Court over the past few years
The author, Atul, is a final year B.A., LL.B. (Hons.) student at the National Law University, Delhi.
This article is an academic critique of the eroding public legitimacy of the Indian Supreme Court over the last few years. It reviews some of the court's recent orders and judgments on important issues concerning the Indian republic, focusing on the apparent course of gradual saffronization.
After remaining relatively dormant during the first few decades of independence, the Indian Supreme Court soon swung into action by giving many landmark judgments in favor of the common people against big landlords. It played a constructive role in protecting the constitutional sanctity from powerful governments by espousing the basic structure doctrine in cases like the Golaknath and Keshavananda Bharti. It significantly expanded the scope of rights by giving a creative interpretation to many of the fundamental rights especially Article 21 that concerns the right to life. For a period of time, it even became a bastion of policy formulation through cases like Vishakha and Vineet Narayan. Noted constitutional law scholar PB Mehta described this phenomenon as an act of the Supreme Court seeking public legitimacy in the name of some democratic and social purpose. And for that legitimacy, it didn’t even hesitate in overstepping its bounds as long as it furthered the cause of democracy.
However, the past few years have seen a paradigm shift in the approach and priorities of the Indian judiciary. It no longer appears concerned either of its public legitimacy or public reason. Many of its recent decisions and orders concerning the Kashmir lockdown, Ram Temple, reservation, etc. resemble the majoritarian political fervor of the ruling dispensation, and the lack of public reason that it once used to boast of. Its rulings and judgments no longer seem to be backed by the arguments of public reasoning rooted in empowerment and upliftment of the not so privileged and other marginalized classes.
The Supreme Court that was once praised for its rights and reason oriented judicial activism, seems to have forsaken it for no good reason other than to satisfy what Andrei Marmor calls “vagaries of the momentary short-sighted political temptations and pressures”. Also, it now thinks more about its dignity through its own perception so much so that it gets rankled even by some tweets.
A few months back, some judges of the Supreme Court got worked up over a few tweets of prominent lawyer Prashant Bhushan, about the Chief Justice who was snapped sitting on a costly motorbike of a BJP leader without a mask. But they did not deem fit to pass even an obiter over the dignity and rights of scores of civil rights activists languishing in jails for the last few years without any bail on made-up charges of sedition and terrorism. It is pertinent to note here, that many of the accusations against the activists appear to be false and politically motivated as police and investigating agencies have failed to produce any concrete and credible evidence against them. But due to the apathy of constitutional courts, the activists continue to languish in prisons even during this deadly pandemic.
While the government showed little mercy even when some of them caught COVID-19, the judiciary also abandoned them to their fate when it rejected their bail pleas several times, allegedly under political pressure. Except during the Emergency, the court has never surrendered its autonomy and self-respect to the political caprices of the executive in such a sweeping manner.
In addition, we have millions of cases pending before various courts in our country. A lot of these cases pertain to crimes against women, serious cases of murder, fraud, corruption, violation of fundamental rights, right to life, right to education, etc. However, we don’t see most of them getting resolved as quickly and enthusiastically by the judiciary as some other cases like the Ram Temple for example. Such cases have little to do with the rights, development, and well-being of society at large, but merely focus on those few people with extreme ideological underpinnings and those who believe in correcting some alleged historic wrongs by riots, massacres, demolition, and wholesale destructions.
The decision related to Ayodhya on November 9, 2019, will always be remembered as a great paradox in the history of the Supreme Court. On one hand, the apex court explicitly termed the act of demolition of Babri Masjid illegal but on the other hand, it ended up giving the disputed area for the construction of Ram Temple. As if this was not enough, one of the judges also wrote an awkward addendum in support of the Ram-Temple. This addendum has been called “controversial” by Vakasha Sachdev. A few months later, Chief Justice Gogoi who had presided over the constitutional bench that wrote the judgment, entered the Upper House of the parliament as a candidate of the ruling party; the same party that had covertly and overtly advocated and justified the demolition of the historic mosque through various communal campaigns in its decades-long political career.
Further, the apex court has also failed to listen to the woes of hapless Kashmiris who have been imprisoned in their own homes as a result of a draconian military lockdown ever since the central government snatched their autonomy and statehood on August 5 last year, in a manner termed as highly objectionable, disproportionate and unconstitutional by many constitutional experts. All sorts of socio-political and economic activities in the former state have nearly ceased to exist due to excessive lockdowns and curfews imposed by the government at gunpoint.
With the erratic suspension of internet and communication services, massive deployment of armed forces, and large scale detentions of politicians and civil rights activists, the impact has clearly been disproportionate as public life in Kashmir has been paralyzed against all democratic norms and rule of law. Hundreds of people have been illegally detained without any lawsuit or written order. Though various habeas corpus pleas were filed, the court did not take these cases seriously in what appears to be callous disregard to the fundamental and human rights of the people.
Though the government denied it, former Union Minister Saifuddin Soz recently alleged that he has been under house detention for over a year. Further, when police battalions laid siege to the house of senior MP Farooq Abdullah on August 5, 2019, the Home Minister was caught boasting in the parliament that he is staying home at his own sweet will. Should the court have remained silent even after seeing such trampling of fundamental rights of citizens in a liberal democratic state like ours? In a petition filed by Anuradha Bhasin in the Supreme Court praying for the lifting of the ban on internet and mobile services in Kashmir, the court asked the government to produce a copy of the ban order but the government failed to produce any such copy. Shouldn't there have been contempt proceedings against the government there?
Next, the way the Apex Court has dealt with the Citizenship Amendment Act 2019 and the ensuing protests, is also questionable. The impugned Act which granted citizenship to some nationals of the neighboring country on the basis of religion was in clear violation of Article 14 of the Indian Constitution that guarantees not only citizens but every person equality before the law. Yet, the Supreme Court did not intervene decisively despite large-scale protests over the act across the country.
Furthermore, the manner in which the Supreme Court handled or mishandled the migrant crisis due to the sudden lockdown imposed by the government to curb the COVID-19 pandemic, has also been criticized by legal luminaries across boards. Millions of laborers along with their families and children, walking on foot to their homes in the scorching sun of May did not melt the heart of the apex court. By nudging the executive or by exercising its exemplary constitutional power, the apex could have played an effective role in granting historic reliefs to these workers mostly coming from the vulnerable marginalized classes, but it failed to do so.
In the words of Dushyant Dave, the court was presented with an excellent opportunity to win back the trust of people by holding the government accountable, however, it refused. He has also questioned the Supreme Court registry for its selective listing of matters for the last eight months during the COVID-19 pandemic as "a matter of serious concern”.
Clearly citizens, especially legal luminaries, have been perturbed by the special treatment and immediate attention given by the apex court to matters affecting a few mighty, powerful or communal and influential media moguls like Arnab Goswami, while ordinary Indians including many rights activists continue to suffer illegal and unauthorized detentions for years.
Recently, while entertaining a plea against the new Environmental Impact Assessment draft notified by the Ministry of Environment, Forest and Climate Change (MoEFCC), for public feedback, the apex court asked the ministry to look into the scope of translating the draft into all 22 languages contained in the eighth schedule of the constitution. Despite this, the Ministry did not undertake any translation exercise. Was it not a better contempt case than the Prashant Bhushan case?
Apart from these, there are a host of other cases that indicate the changed priorities of the Indian Supreme Court. To cite a few more, the court was quick to pass an order for CBI inquiry in the Sushant Singh Rajput case, but it has not shown similar zeal in taking cognizance of the lakhs of suicides committed by farmers and tillers of the country.
While it showed considerable haste in convicting Prashant Bhushan for contempt over some tweets, it did not deem the recently established PM Cares fund worthy of public scrutiny even though it is headed by public authorities in the same vein as the PM National Relief Fund and has received over Rs. 2,000 crores from Public Sector Undertakings, which is essentially public money and hence should be covered under the Right to Information Act 2005 (RTI). All this shows that judges are not necessarily immune from class and ideological biases as was rightly pointed by Jeremy Waldron in his core case against the Judicial Review.
Unfortunately, along with the court, the media also seems to have neglected its responsibilities as the fourth pillar of democracy. There is hardly any dialogue in mainstream media on the pervasive poverty and deprivation in the masses due to wrong government policies (regardless of which party is in power) but they have prime time reserved for intense debate and jargon on one-sided communal rhetoric, that often end up undoing the inclusive social fabric of mutual coexistence. One wonders if our freedom fighters fought hammer and tongs against the British regime for this day. Let’s hope that in India’s many trysts with destinies, this darkness of gloom vanishes soon with a new dawn of peace and freedom that strives to bring an inclusive and egalitarian order both in letter and spirit.
Works Cited
• Pratap Bhanu Mehta: The Indian Supreme Court and the art of Democratic Positioning
• Jeremy Waldron: The Core of the Case against Judicial Review
• Andrei Marmor: Are constitutions legitimate questioning the validity of the constitution
• Ronald Dworkin: The majoritarian Premise
• Dr. Sandeep Pandey: प्रशांत भूषणलोगों द्वारा महसूस कीजा रही घुटनकी आवाज़
• Upendra Baxi: The avatars of Indian Judicial Activism
• Aathira Konikkara: From the other side of the bars
• Martand Kaushik and Anjaneya Sivan: Bhima Koregaon Case: Prison-rights Activist Rona Wilson’s Hard Disk contained malware that allowed remote access
• Surabhi Agarwal: Commemorations of the Bhima Koregaon battle are a reminder that Colonialism in India predates the arrival of the British
• Judiciary Failed to Protect Citizens’ Rights amid Covid-19 Pandemic: Dushyant Dave.
• Mihir Desai: Covid-19 And The Indian Supreme Court.