The Supreme Quote

The ideological bent of the higher judiciary has never been a significant aspect of the glorious (and sometimes not quite so) uncertainties of democratic politics in India, unlike, say, in America. There are good reasons why it is so. In America, Supreme Court judges are chosen by presidents on ideological grounds. To put it very simply, therefore, if the Republicans get to appoint a few of the judges, you know that the court will tilt to the religious right, or the right-to-life side on the issue of abortion, and if the Democrats are able to appoint theirs, the judges will be pro-choice. And so on, on other, larger socio-constitutional issues.

In India, judges are not appointed for their political or ideological leanings. That was never particularly the case and in fact, it was one of the arguments Indira Gandhi and her Emergency apologists had used to start interfering in judicial appointments: that our judges were much too old-fashioned and conservative (and thank god, some of them were, because they cast our basic freedoms and the sanctity of the basic structure of the Constitution in stone, and emerged as some of the greatest, wisest and certainly the bravest judges of the modern world, not just India). There were threats of bringing in a committed judiciary, more in tune with the socialist ideal that was used as a brutally cynical excuse for the Emergency. This was the response of an all-powerful, dictatorial state still smarting from a 7-6 defeat in the Kesavananda Bharati case, and the setting aside of Mrs Gandhi’s election by the Allahabad high court. The packing of the Supreme Court with judges more in tune with the establishment’s then-socialist ideology was launched in earnest by the Emergency cabal. But, fortunately, it was cut short by Mrs Gandhi’s defeat in the 1977 election. The cleaning-up of the wreckage of the higher judicial institutions and qualitative reconstruction was launched by the Janata government under the care of who else but Shanti Bhushan, the law minister in Morarji Desai’s cabinet.

It was the only time that systematic effort was made to give the higher judiciary a pre-determined ideological slant, and fortunately for our generation and our children’s, the voters cut it short. Subsequent and reformist changes in the procedure of a judge’s appointment, ushered in by the Supreme Court itself, further ensured that the political class would not be able to either sabotage or pack the higher judiciary with their own. Nobody tried to mess with this even during the six years of the NDA.

Indian senior judges, therefore, have evolved as formidable professional jurists. They have built a name over the decades for their clinical interpretation of the law and the Constitution. In the process, the institution of the Supreme Court has emerged as the strongest pillar of our democracy and has built a real (and well-deserved) reputation around the world.

Its ideology, if anything, has been unshakeable constitutionalism and successive generations of judges have established a liberal, democratic and large-hearted tradition. Over nearly three-and-a-half decades from the Emergency, the higher judiciary has evolved in harmony with the larger democratic world: towards social liberalism and economic reform.

Our Supreme Court’s record over the recent years underlines this wonderful phenomenon. On economics, society and politics, the bench has stayed way ahead of the executive and the political class, even under reformist prime ministers. On economics, the court’s views, ranging from denying strikes as employees’ fundamental right to strengthening rights to private property, rulings on contract labour have all been reformist and modern. As is the case with the leadership it took on environmental issues when they were not so fashionable and when Greenpeace wasn’t spending tens of crores in India. The Supreme Court brought in CNG, set emission standards for vehicles, protected the Taj Mahal, set new norms for organ transplants and so on and the rest of the judiciary picked up the thread. So we got that landmark, liberal judgment from the Delhi high court decriminalising consensual homosexuality.

 

In the same heady period, the Supreme Court reinforced the independence of the Election Commission, strengthened the CVC, raised the bar on Article 356, thereby strengthening the federal structure, played a stellar role in ensuring investigations into the Gujarat killings, strengthened laws on sexual harassment in the workplace and so on. In fact, over these three decades, you can see almost no Supreme Court order that does not pass the test of liberal, reformist large-heartedness, and brilliantly so.

That is why some of the recent judgments and orders, in fact over the past week or so, are so significant. You can agree or disagree with the order, but the language used? This paper had a full page of highlighted excerpts on Thursday morning. Not only is the language out of tune with the times, but it is also as if the apex court had made a dramatic ideological shift, or almost as if a new president in America had just made a bunch of his own appointments. Large parts of these judgments are just lectures on political economy that make you ask a legitimate question: what is the job of the judges, to interpret law, or to criticise/make/change economic policy? Surely, judges, like you and I, are entitled to their own, strong views on these issues. But if you want to make policy, the message to you has to be the same as to our civil society: go to the people with these ideas, get votes, change policies, and be accountable for the consequences, good or bad.

Or, okay, let us stop complaining about the language in these never-ending lectures on the post-reform neoliberal economy having the intellectual depth of a JNU postgrad. Pick an issue with the larger argument, that all this corruption, state (and Maoist) brutality, black money, misuse of land acquisition laws, etc are a consequence of economic reform. Did we generate less black money (as a percentage of our economy) when tax rates were at 97 per cent in the heyday of Emergency socialism, or now? Reform, transparent, non-discretionary regulation and modern laws are not the cause of corruption, but the best antidote against it. And the scams we have seen, including 2G, have taken place not because of too much, but too little reform. Because too much discretion was still left in the system. It is these areas of discretion that the apex court can help eliminate even as it oversees the investigation and prosecution of these scams. Ushering in an entirely new political economy or new socialist revolution may be too much of an ask even for our most venerably redoubtable Supreme Court. And you can add with the greatest humility, this is not its brief, either.