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The Supreme Court is currently in the middle of its worst credibility crisis and this time, it is of its own making.

For a court that has often been criticised for being too activist in the past, it has now done a 180-degree turn, and appears incapable of addressing even the most basic kinds of fundamental rights violations especially when they relate to the Narendra Modi government.

But this isn’t a problem of independence of the judiciary at large. High courts in India have been more than willing and capable of doing their jobs in such testing times.

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High courts set higher benchmark

The Supreme Court’s approach as a constitutional court seems to be to adjourn or delay, not wanting to take any tough call that might end up displeasing the Modi government. That is when it is not acting as the self-appointed executive wing of the government, such as in the National Register of Citizens case.

To see the difference, compare the Gauhati High Court striking down the internet ban in Assam with the Supreme Court’s waffling Constitution bench ‘judgment’ in the context of Jammu and Kashmir’s internet shutdown.

From granting bail to anti-CAA protesters, to upholding the right to protest peacefully, to ensuring no accused goes unrepresented in the teeth of majoritarian violence, the Karnataka High Court has stood out like a beacon in bleak times. The Allahabad High Court held the Uttar Pradesh government accountable for police violence on protesters, ensured bail for unjustified arrests and held extraordinary sittings to strike down the Yogi Adityanath government’s vengeful actions against protesters.

A recent article by a former Patna High Court judge and senior advocate Anjana Prakash lays bare some of the anguish and confusion about the court’s behaviour in the last few years. Another article by advocate Manu Sebastian deals with the UP hoardings case and describes the Supreme Court’s recent judicial behaviour as “passive and evasive” in the face of egregious civil rights violations. These are only the two latest examples of what has been on the minds of a section of the commentariat which is questioning: what’s wrong with the Supreme Court of India?

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The current complacency

No one, not even the staunchest defenders of the Modi government have made an attempt to offer a counter-narrative to justify the Supreme Court’s behaviour. For those who blindly support to the government, a court that simply toes the government’s line is perfectly fine. There is no point in spilling ink (and wasting server space) in expanding upon their line of argument—might is right.

The court itself has offered no defence of its behaviour, except for the occasional whining about “social media” and “pressure”. There are, to be sure, certain judges who have spoken out in public (usually in speeches) about the need to protect fundamental rights from majoritarian governments and the importance of dissent. Yet, this is hardly reflected in any meaningful forms of dissent internally within the court. At least not since the unprecedented January 2018 press conference held by the four senior-most judges of the Supreme Court.

The pattern is eerily similar to what happened during the Emergency — high courts picked up the mantle of enforcing basic civil rights as the Supreme Court crumbled and conformed to the ruling party’s diktats. Even as nine high courts across India held that the writ of habeas corpus would not be suspended during an Emergency, the Supreme Court was singing paeans of the “maternal” care that the detainees were receiving during the clampdown. While one could attribute the Supreme Court’s cravenness in the 1970s to the greater influence of the Indira Gandhi government in appointments, what explains the court’s current cowardice and complicity?

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The possible reasons

There are no easy answers, but I propose two theories that might go some way in explaining this. One, the collegium process selects for conformity and not for difference. Two, proximity to executive authority taints the judiciary. I also spoke on the issue in detail in this episode of the Pragati podcast.

Even though the current lot of judges began their Supreme Court careers just before or just after Narendra Modi became Prime Minister of India, they are among the first generation of judges to have made it to the high courts and to the Supreme Court only through the collegium system of appointment. Even though the system was supposed to ensure independence from the executive, it does not in any way ensure that judges of integrity or ability are appointed. The system does not even attempt to ensure enough diversity in appointments, preferring to indulge in occasional acts of tokenism. This has led to a Supreme Court that is now composed of judges who have entered the top court because of their ability to conform, and due to their caste, class and gender; with a few notable exceptions.

But that doesn’t explain why high court judges, across India, who though appointed through the same system, have shown much more spine and alacrity. One reason could be that ‘distance from Delhi’ matters. In as much as judges are supposed to distance themselves from prevailing political, cultural and social trends in doing their jobs, it is almost impossible to expect them to do so. I’d argue that constant proximity to political power corrodes a judge’s sense of constitutional morality. Whether it is in securing post-retirement sinecures, or pre-retirement protection from criminal law, Supreme Court judges tend to get very cosy with the political executive if the latter is more accessible to them.

This may not provide a complete answer to the question of “what is wrong with the Supreme Court” but perhaps in trying to answer that question it is not enough to ask “what is wrong with this Supreme Court”.

It may be necessary to explore the underlying structural flaws within the institution itself that has led to it repeatedly failing in its constitutional duties when it has been needed the most.

Alok Prasanna Kumar is a senior resident fellow at Vidhi Centre for Legal Policy. Views are personal

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