2016: The Supreme Courts report card

The Supreme Court finds itself at a curious juncture. It has spent much of the
year lodged in a widely broadcast battle with the Union government over
judicial appointments. Led by Chief Justice T.S. Thakur, who retires on January
3, 2017, the court has fought this contest presumably to assert its independence
from executive and legislative control. But, somewhat counter-intuitively, the
wrangle has had a deleterious impact on the courts moral authority. The court
has not only been intransigent in allowing the executive no say in matters of
appointments, despite the Constitutions clearly contrary mandate, but it has
also failed to make the existing system selections through a collegium of
senior judges more transparent and democratically justifiable. Whats
worse, while constantly stressing on its apparent autonomy, the court has
often appeared to cave in to the very majoritarian impulses that it is tasked with
refuting.
While it is no doubt difficult to make grand assertions about the Supreme Court
given that it doesnt sit en banc , as one, and given that it comprises judges who
can be disparate in their outlook and attitudes towards what constitutes a proper
judicial role, collectively the courts choices in 2016 have shown us that any
independence it enjoys hasnt guided it towards concerted courage in decision-
making. On the contrary, particularly in enforcing fundamental rights which
it ought to see as its most important function the court has, barring a few
notable exceptions, scarcely served as the keeper of the countrys conscience.
Tussle between judiciary and executive
The present battle lines between the judiciary and the executive were drawn in
October 2015 when the court delivered its verdict in Supreme Court Advocates-
on-Record Association v. Union of India . Here, the court struck down the 99th
Constitutional Amendment and consequently the National Judicial
Appointments Commission (NJAC), which had been created to replace the
collegium. Four of the five judges who heard the case (Justice J. Chelameswar
dissented) found that the primacy the collegium enjoyed in choosing the
countrys judges was a part of the Constitutions basic structure. According to
the majority, the NJAC a body that was to comprise the law minister, two
eminent laypersons, and the three senior-most judges, including the CJI in
removing the primacy that the judiciary enjoyed in selecting its own members
infracted the basic structure, and, therefore, had to be quashed.
Although this is a decidedly bizarre conclusion when you consider that the
collegium finds no mention in the bare text of the Constitution, many political
observers believed that it was a verdict that was necessary to ensure the
independent functioning of the judiciary. But not even the most ardent
supporters of the judgment backed the existing status quo. The collegium
system indisputably required reform. To this end, in December 2015, the
Supreme Court, after receiving a slew of suggestions on how to improve the
collegiums functioning, directed the executive, whose sovereign power to
make appointments it had divested in its verdict, to prepare a draft
memorandum that would lay down the procedure for the collegiums
functioning.
Since then, there has been a constant back and forth between the two wings,
with no end apparently in sight. But if the court were so loath to giving any
leeway to the executive in the process, it makes one wonder why the task of
preparing the draft memorandum was assigned to the government in the first
place. Making things worse, one of the collegiums members declined to
participate in a meeting of the group in September this year, on grounds
purportedly of a lack of transparency in its working. Whatever one might think
of Justice Chelameswars methods in expressing his demur, his objections only
made it clearer that there was something broken at the core of the system: the
collegium, in his assertion, was simply functioning in a manner beyond the
remit prescribed for it by the courts own judgments.
Two flawed decisions
While enshrouding the process of appointing judges from any reasonable
standard of candour and accountability, the court has simultaneously made
choices that only show that the present system doesnt necessarily produce the
kind of counter-majoritarian judiciary that a democracy requires. Two
decisions from the past year exemplify the courts remarkably unflattering
outlook on fundamental rights. The first, rendered in May Subramanian
Swamy v. Union of India rebuffed a challenge to the colonial-era criminal
defamation law and upheld Sections 499 and 500 of the Indian Penal Code.
Judges, under any sensible interpretation of their role, are required to apply
rules derived from precedent, statutes, and the Constitution, in checking
legislative or executive excesses. But the court in Subramanian Swamy did
none of this. It brushed aside legitimate concerns about the chilling effect that
the criminal defamation law has had on speech with a frightening disdain for
tradition and precedent. Justice Dipak Misra, who wrote the judgment, in
holding that the law constituted a reasonable restriction on the right to freedom
of expression, made no effort whatsoever in relying on any of the
constitutionally sanctioned limitations to free speech. Instead, he appealed to
his own distinct sense of what ought to constitute the law, by carving out of the
ever-malleable Article 21, which guarantees a right to life and personal liberty,
a right to reputation. Worse still, he conceived a concept of constitutional
fraternity, hitherto unknown to Indian law, which, he ruled, demanded an
assurance of mutual respect and concern for each others dignity. This
reasoning is flawed on many counts. But chief among them is the fact that
neither of the precepts relied upon by Justice Misra finds mention in Article
19(2), which contains the legal basis for restricting speech. The consequence
of the judgment is vastly damaging: it has the effect of placing values that rest
on individual predilections above the right to freedom of speech, which, by any
equitable interpretation of the Constitution, ought to stand on firmer footing.
The second decision, delivered on November 30, extraordinarily takes rights
even less seriously. In an interim order on a public interest litigation filed by a
supposed social activist from Bhopal, the court directed that all cinema halls in
India play the national anthem before the screening of any film, and that
persons present in the hall compulsorily stand up to show their respect for the
anthem. Quite apart from indulging in rule-making that ought to be the
prerogative of Parliament, the order sidesteps its complete disregard for basic
liberties by offering no reasons whatsoever. In doing so, the court simply
assumed the role of a super legislature, having tasked itself with the power to
impose its own brand of distorted nationalism.
There have been other instances in 2016 of the Supreme Court using what it
perceives to be a power to do complete justice to achieve precisely the converse
among other impacts, these verdicts set a poor example for high courts
which are concomitantly tempted to extend the use of their writ to perform what
are principally legislative functions. But whats been even more damaging to
the Supreme Courts legitimacy has been its dithering under pressure. Despite
issuing interim orders as early as in 2013 making the securing of the Aadhaar
card optional, the court has failed to adequately enforce its directions
seemingly every day the government and its various agencies appear to extend
the use of the unique ID linking it with the provision of a number of essential
services. The court can be excused for failing to haul up the government for
contempt of its orders were it to expedite its hearing of the basic challenge to
the UID scheme. But the Constitution Bench established to determine whether
Indias citizens have a fundamental right to privacy, which the Aadhaar policy
quite clearly appears to contravene, is yet to hear concrete arguments on the
issue.
Challenging demonetisation
In similar vein is the challenge to the policy of demonetisation. A number of
petitioners have not only questioned the procedural validity of the
governments and the Reserve Bank of Indias various notifications, but have
also contended that the policy infracts significant fundamental rights. Early this
month, in Contours of a challenge ( The Hindu , Dec.2), I had said that the
manner of the Supreme Courts treatment of these petitions will tell us a great
deal about the checks and balances that our democracy purports to provide.
We now have a very quick answer, and its not a good one.
After many false beginnings, on December 16, the court directed the
establishment of a five-judge bench to rule on the constitutional validity of the
demonetisation notifications and on the legality of the policys implementation.
If we were to go by the example of the Aadhaar case, it is entirely likely that
this policy too would be rendered fait accompli by the time the court gets
around to hearing the challenge. In many ways, these acts of wavering in the
face of public pressure showcase a Supreme Court lacking in moral courage.
The harm in consigning to the academic challenges to laws that have an
immediate bearing on our lives, which invade into our cherished liberties and
into our ability to function as equal beings, is enormous. An independent
judiciary, properly understood, far from being one that appoints its own
members, is one that possesses the will and the conviction to resolve swiftly
hard cases, uninfluenced by societal perception, in a manner that enriches the
finest values of our constitutional tradition.
Suhrith Parthasarthy is an advocate practising at the Madras High Court