The Supreme Court is arguably facing its biggest crisis of legitimacy since the Emergency. The recent order on the national anthem in cinema halls exemplifies in a nutshell so much that has gone wrong with jurisprudence in recent times. It is an order that seems to wilfully disregard basic distinctions central to a conception of rule of law in a liberal society. Though this judgment may be an extremely egregious case, it exemplifies several problems at the heart of the diminishing authority of the court. The power of the court, in the ultimate analysis, rests upon the compelling character of its reasoning. By passing an order that does not try to meet even the minimal burden of reasoning, the court only reminds citizens of the growing imperiousness of its claims.
Second, it seems not to understand a distinction basic to a liberal society that not everything that may be desirable has to be made compulsory. In fact, it does not occur to the judges to, for a moment, think that making something compulsory at times vitiates the meaning of an act. Even if you happen to think that respecting the national anthem is a good thing, requiring that it be respected undermines the possibility of respect. For an act to be an act of genuine respect rests on the possibility that you could choose not to respect; if that choice is taken away what you are eliciting is an external performance, not respect. In short, the judges have, once again, displayed a minimal grasp of moral psychology that underlies respect and value. In fact, one reason you want not to make “respect” compulsory is because then you denude society from being able to distinguish genuine respect from the mere performance of it under the threat of coercion.
Third, the judgment seems to pervert the meaning of all the terms it uses. Its use of Habermas’s term “constitutional patriotism” is very peculiar indeed. The idea of constitutional patriotism is that the terms that bind citizens to each other derive from the constitution itself, and no other motivation is required to secure our reciprocal commitments to each other. Nationalism is, in some sense, the antithesis of constitutional patriotism because it requires that unity be secured by some glue, or motivating force, or collective affect that is not produced by the constitution itself. As beautiful and worthy as the national anthem might be, whatever form of unity it produces, it is not a symbol of constitutional patriotism. It is a symbol of a nation, not of a constitution. It conflates love of “motherland” with constitutional patriotism. To conflate the two is to misunderstand both constitutionalism and patriotism.
Fourth, the judgment does not seem to understand the meaning of liberty and rights at all. I am not sure anyone can make sense of the sentence “it does not allow any different notion or the perception of individual rights that have individually thought of have no space. The idea is constitutionally impermissible.” Seriously? The nation or the constitution does not allow the “perception of individual rights?” Are all notions of rights to be immobilised in the face of nationalism?
Fifth, the order has no sense of practicality. By cloaking law in the hoary rhetoric of emotion, rather than the rule of law or some genuinely practical considerations, the order invites contempt for law itself. Yes, this is an interim order, but the order does not even try and show how it coheres with law taken as whole, or the constitution read in light of its history. There is, of course, supreme irony in the honourable judges using provisions enacted during the Emergency to give the idea of virtue an authoritarian twist. It is an order that seems to be in keeping with the tenor of the times: Inculcating virtue is merely a pretext for enhancing the state’s coercive power over us.
One could go on. But this is a judgment that cannot even bear the slightest weight of analysis, and does not bring any credit to the court. It would be easy to dismiss it as an outlier, a poor performance by a couple of judges. But that response itself would exemplify what is wrong with the Supreme Court. Admittedly, the court is handing down some good judgments. But the variance in the quality of orders should be an embarrassment to the highest court of the land. The fact that we attribute so much of the variation to idiosyncrasies of individual judges is itself an indication of how far the idea of the rule of law has been replaced by the predilections of individual judges. Judges do matter; it is a myth to suppose they don’t. But the idea that judges make no attempt to evolve a common constitutional culture should trouble constitutional patriots. The poor quality of these kinds of orders brings out in the open what many citizens feel, but are often too afraid to express: The Supreme Court has been singularly bereft of the kind of imaginative legal and intellectual leadership that establishes the court’s authority.
There are other signs of the eroding authority of the court. We are not noticing, but significant court orders are simply not being complied with. For instance, whatever one may think of Aadhar, the fact is that the ubiquitous use of Aadhar is contrary to the spirit of the court order in the matter. States are openly threatening not to abide by Supreme Court rulings in inter-state water disputes. In the meantime, the Supreme Court seems to avoid pronouncing on several important constitutional matters.
There is no question that judicial independence is of paramount importance. Whatever scheme of selecting judges we adopt should ensure that. But equally, it is important for the judges to demonstrate that independence does not become an excuse to create a judiciary that is poor in quality, undiscerning in its judgment, not aware of basic moral distinctions, populist rather than legal, sentimental rather than reasoned, casual in its understanding of when rights are being violated, impractical in its orders, but most of all, imperious in the way it usurps all powers for judges. While on the one hand, easy access to justice remains a pipe dream, judicial imperiousness is now threatening so many values and institutions. The order on the national anthem is slight; but it is also a reminder of just how slight our Supreme Court’s authority has become.
(This article first appeared in the print edition under the headline ‘Unconstitutional Patriotism’)