Collectively, the court’s choices this year have shown us that any independence it enjoys hasn’t guided it towards concerted courage in decision-making

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 court’s moral authority. The court has not only been intransigent in allowing the executive no say in matters of appointments, despite the Constitution’s 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. What’s 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 doesn’t 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 court’s choices in 2016 have shown us that any independence it enjoys hasn’t 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 country’s 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 country’s judges was a part of the Constitution’s 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 collegium’s 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 collegium’s 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 collegium’s 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 Chelameswar’s 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 court’s 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 doesn’t necessarily produce the kind of counter-majoritarian judiciary that a democracy requires. Two decisions from the past year exemplify the court’s 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 other’s 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 what’s been even more damaging to the Supreme Court’s 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 India’s 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 government’s and the Reserve Bank of India’s 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 Court’s 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 it’s 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 policy’s 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