At the height of the Brexit controversy in the United Kingdom, the legal commentator David Allen Green wryly remarked that the surest sign that a Constitution was working was that constitutional law was boring; when constitutional law began to get exciting, something was probably rotten in the State.
In the last few years, constitutional law in India has been ceaselessly exciting, and at the centre of things has been the Supreme Court (SC) of India. In that context, the court’s functioning has come under serious scrutiny, and the debate has quickly turned acrimonious. Why is the independence and integrity of the SC being questioned in the public domain, in a way that it has not been since the Emergency? There are a few characteristic features that have marked judicial conduct during this period, which are of serious concern.
The most glaring is that of judicial evasion. The SC simply refuses to hear constitutional challenges to far-reaching State action, sometimes for years. Its refusal to hear those cases unambiguously benefits the State. For example, the Aadhaar challenge was kept pending for six years, and by the time, it was finally heard, the State effectively presented the court with a fait accompli. The challenge to the alteration of Article 370, the internet shutdown in Kashmir, the litigation between the government of Delhi and the central government, and the challenge to economically weaker sections (EWS) reservations are some other instances of judicial evasion, but by far the most egregious is that of electoral bonds.
By virtue of the electoral bonds scheme, thousands of crore of anonymous corporate donations have been funnelled to political parties (for structural reasons, a vast bulk of these donations go to the ruling party), setting up an entire system of opaque electoral funding. The electoral bonds scheme was challenged in 2018, immediately after it was brought into force. Multiple state elections and a general election have passed, but the case has not been heard, and the former Chief Justice — and now member of Parliament — Ranjan Gogoi, when asked about this case, brazenly said that he didn’t “remember” it. No matter how many contempt applications are filed by zealous law students, it is impossible to look at this and not have serious questions about the SC’s institutional independence.
Judicial evasion is accompanied judicial deference. Much has been made of the SC’s uncritical acceptance of the Solicitor-General’s statement that no migrants were walking on the road in the immediate aftermath of the pandemic, but this is only one example of a broader trend in which the court fails to perform even its basic task of scrutinisnig the government’s claims during litigation. Sometimes, this takes a particularly extreme form, as in the internet shutdown case in Kashmir, where after multiple hearings, the court simply refused to rule on the legality of the shutdown, and instead asked a government-appointed committee to do so. To this day — 16 months after the shut-down — internet continues to be restricted in Kashmir.
This has been accompanied by the court’s refusal to rule on habeas corpus (illegal detention) applications for months, until the government itself decides to release the detained individual, making the case infructuous. No matter how many contempt applications are filed by zealous law students, it is impossible to look at this and not have serious questions about the SC’s institutional independence.
Finally, much has been made about the alacrity with which Arnab Goswami was granted relief by the SC, and the fate of other litigants who have not been quite as sympathetic to the government. There is little doubt that the court’s decision in Arnab Goswami’s case was correct. However, the issue is deeper. The SC has 30 judges. Expectedly, they have very different constitutional philosophies. Some of them value individual liberty, and give great importance to civil rights. Others — such as the present Chief Justice — appear to hold the view that individual rights are subservient to fundamental “duties”.
In such a scenario, it is entirely obvious that which judge hears a civil rights case will have a direct bearing on the outcome. However, the assignment of cases takes place through an entirely opaque and non-transparent system, entirely at the discretion of the Chief Justice (the “master of the roster”). This leads to a situation where bail is granted overnight in some cases, while in others — involving, for example, anti-Citizenship (Amendment) Act protesters in Karnataka — the SC, without assigning reasons, reversed a high court judgment granting bail, and then — outrageously — kept these protesters behind bars for six months before giving them bail again. No matter how many contempt applications are filed by zealous law students, it is impossible to look at this and not have serious questions about the SC’s institutional independence.
These three features — judicial evasion, judicial deference, and judicial inconsistency — have become staples of the system over the last few years. The effect of each one has been to benefit the State. Impartial observers will look at this and draw their own conclusions about institutional independence and integrity.
Gautam Bhatia is a Delhi-based advocate
The views expressed are personal