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?
Also read: Supreme Court can’t show weakness when people’s lives lie in the hands of murderous mobs
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
It’s unbelievable how people are unable to see what the government is attempting to do here. It could have given citizenship to refugees in one swoop without any need for something like CAA . The entire purpose is to create a citizenship criteria disguised as a humanitarian law. Now they can ask people to provide citizenship as per the citizenship law which is very hard for most indians to prove. However the worst case scenario for anyone other than Muslims is that they have to say they migrated from neighbouring countries in whichever year they have documents for . For muslims if you can’t find birth certificate of your ancestors which almost 90% indians don’t have. Your future is a detention camp or foreigners tribunal at best. All this while your business/job will be destroyed and the mental torture caused. What is the expectation from an indian Muslim ? Wait as the government which has a track record and established ideology of discrimination against them unfold their grand scheme on them.
Very sad, but true. Look no further than Shri Ranjan Gogoi, MP.
Independence of judiciary in our country is a myth irrespective of whichever party in power.Emergency period was altogether different and should be kept aside.Performance of SC in a given period is to be judged on merit of its verdicts alone.
There is no emergency now. Can’t they function independently.
SC is doing whats the best for the country acting a kind of wait & watch kind of thing & to maintain the discipline & avoid anarchy in the country, showing a kind of maturity & balance to maintain the peace in the society, saving from anarchists rather than act like the Higher Court. As we have seen how the anti CAA has turned up, deliberately the opposition & certain media has misguided the mass and started the fire but for the Assam agitation the anti CAA was not gathered momentum. Of course, a very few print media & visual ones has clearly said the Assamese Problem is different, still majority one did not support it & most of the medias supporting the anarchist to help & instigate the innocent & poor people to take a cue from this. Where were the Higher Courts & their judgments, then on suo motto they should have clarified this. People would have respected their intervention & this would have avoided violence & saved the public & private property.
It is crystal clear that the opposition supported by the media is some how bring down the Modi & his government fanning anarchy which will lead to Economic disaster & peace in the country by their controversial judgments. None of these higher courts has said or passed on the guide line to suppress the violence & damaging the public & private properties in the guise of protest. Who will protect the people who suffered the loss of property, lives & Lively hood.
At the end of the day the Higher Courts are only the Higher & never becomes Supreme Court by just passing on such orders without suggesting the alternative. Yes the present government is firm in handling these kind of trouble makers in the guise of NGO, Liberals & Opposition parties who could not contain the ruling party in parliament with debates & justification by substantiating their claim., at the end of the day the common man is suffering. And better you guys stop this nonsense notion that if judgement or the responsible action by the SC as support to Govt. It is heartening to see that now a days the SC will not give a scant value for such opinions & responses. Thanks.
Yes, I agree that SC should not have allowed Shaheen Bagh protests to continue on-road and should have told them to move to a neutral place without any delay. Now High courts- what was the reason of UP Hight court to take Suo moto cognizance of naming and shaming posters in Lucknow, for those people who destroyed public property and this was done on Sunday. Guwahati High court stopping the ban on the internet ? Fact is that judiciary is acting which actually is not its domain because it does not face the protestors on road. I remember during Punjab insurgency, bail was granted to terrorists even before their entry into the court. Some of the judges even got up when the terrorists entered the court. If judiciary has to behave in the same way, what is the point? How can you allow someone destroying public and private property, be caught on camera and still protect his right to privacy? This is a big joke. It emboldens protestors and terrorists to continue their war against the state. What about the rights of people whose property has been destroyed? No appreciation for Judiciary in the cases mentioned above.
Surely I give example of of civil case of sale of 100 Sqm. House. Man sold it in 1993 after death of his father in 1988. Denied the agreement. Suit for specific performance was decreed in 2001. This continuously become final upto Supreme Court in 2010. In its execution his deceased sisters sons claimed share in house these objections were dismissed its appeal was remand back now in this execution his heirs filed suit and objections in 2013 these all were dismissed. Appeals were dismissed. But in high court did not mention that case has already been final upto Supreme Court and made share of his sisters in 2018. Appeal and review in Supreme Court were dismissed. Execution was started for 1/ 3 share. In his reply sellar said that appeal in civil suit is still pending in High court . Court made second sale deed and only symbolic possession is given in 2019. Now in March 2020 High Court Chandigarh has admitted the RSA and stayed the execution proceeding which were being made after being final second time from Honorable Supreme Court of India. Contact No. 8221828128
Where were you when the Supreme Court struck down the NJAC Act? Collegium system perpetuates dynasties and croneism in judiciary. If the supreme court is less activist now, only people who should grumble would be Indira Jaisingh, Vrinda Grover, ML Sharma et al. Enough of socio-political reform through judiciary. India is paying dear price for it. In fact, Harish Salve blames the supreme court for dire economic straits of India.
Let me simplify this for not so luminous readers here. This means that as long as SC judgments are what Congress & its eco system want, its fine. BUT, if, heaven forbid, the judgment goes against Congress & its coteries – SC is corrupt, judges have no spine, Judiciary is impotent etc etc. To further simplify it, if congress or AAP or Mamta wins elections EVM’s are fine, BUT if they are defeated – EVM is faulty. Got it?
You are behaving irresponsible no govt will allow hoodlooms to creat chaos by using social media. Today people work more for publicity or political gains. More so because you can creat more trouble on line. How many lives or property has been lost due to so called unconstitunal actions.
If some court gives the verdict left liberals wanted then they hail the courts else in their view courts are useless.
This same hypocrisy is the reason why people no longer believe these liberal crooks
People should only believe idiots like you.