“That all constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that Judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision.”
— Justice HR Khanna in Kesavananda Bharati v State of Kerala
In Rumpole and the Married Lady, the fictional lawyer, Horace Rumpole, tells Mrs Thripp, the wife he is representing in a divorce case, “There’s not a man sitting as a judge in the family division who can bear to see a woman treated in this way.” To his horror, the case is assigned to a lady judge who is exceptionally harsh on Mrs Thripp! Values and legal thought differ across judges and in commercial and private disputes, the impact on the outcome due to differing values and legal thought is limited to the litigants before the court. However, when judges in constitutional courts have drastically varying legal thoughts, the impact is almost always felt by minorities of different denominations. In India, a judge with conservative legal thought can significantly impact federalism, secularism and the fundamental rights of citizens. And in the US Supreme Court, Justice Amy Coney Barrett tilts the balance overwhelmingly in favour of conservative legal and political values. A foreboding nomination on the eve of the elections and although it did not alter the outcome of the elections, it has tremendous ramifications in various spheres of American life.
Unlike most common law countries, the US has a peculiar legal thought — Originalism, which coincidentally aligns with conservative political thoughts and values. This isn’t traditional conservative legal thought widely accepted in all jurisdictions — deference to legislature and executive, and limiting the scope of judicial review. Conservatives believe the US Constitution must be strictly interpreted according to the founders’ intentions in 1789 with no adaptations on account of changes in society. The right to bear arms (Second Amendment) is therefore sacrosanct and the right to abortion (a right of privacy, not mentioned in the Bill of Rights) unconstitutional. Five US Supreme Court judges — Associate Justices Alito, Thomas, Kavanaugh, Gorsuch and Barrett subscribe to Originalism. Earlier, the burden fell upon Chief Justice John Roberts to strike a balance. Although a legal conservative and appointed by a Republican President, Chief Justice Roberts has often sided with the liberal judges of the Court. For instance, to uphold the Affordable Care Act (Obamacare) and recently, an extension of protection under the Civil Rights Act to gender-based minorities. Chief Justice Roberts has therefore been criticised for being too conservative by Democrats and too liberal by the Republicans!
This wide schism wasn’t always there in the US Supreme Court. Chief Justice Earl Warren, another Republican appointee was part of a court that authored leading judgments on due process and civil liberties covering issues like affirmative action, inter-racial marriage etc. Since the 1980s, particularly after Robert Bork’s nomination was defeated, the lines have been drawn so sharply that in politically charged cases, the legal outcome reinforces the political divide. A conservative Supreme Court has alarming ramifications in politically charged issues such as healthcare, electoral reforms, immigration, separation of Church and State, regulatory oversight etc. that are likely to approach the US Supreme Court in the near future.
Conservative judges also exacerbate the social divide. Majority judges in the US Supreme Court are Christian, Caucasian men and, in India, upper-caste Hindu men. Both countries have a yawning socio-economic divide and millions of marginalised people. While courts are not democratically constituted, judgments authored by the privileged upper class can be easily perceived as perpetuating a status-quo and discrimination that is as old as the country.
India doesn’t have the US’s school of Originalism but is not immune from judges having differing values. Indira Gandhi’s cabinet openly proclaimed for the need of a “committed judiciary”. This was underscored in Justice Bhagawati’s infamous congratulatory letter to Indira Gandhi on her return to power. The grievance from cases of public importance being heard only by some judges and not others must be examined in this context. The January 2018 press conference by the four Supreme Court judges was a timely warning about only certain judges hearing matters of public importance. An ominous warning that failed to stem a deferential trajectory of the Court.
The Supreme Court’s inordinate delay to hear petitions challenging abrogation of Article 370 and enforcement of fundamental rights in Kashmir, while expediting the hearing of the Ayodhya dispute highlighted this alignment of judicial approach and political ideology. Earlier this year, a bench headed by Justice Arun Mishra hearing the petition on disqualification of Rajasthan MLAs went on a tangent on the expression of dissent rather than adhering to precedent on powers of the Speaker on disqualification of MLAs. Although these were casual observations, it only reinforced the alignment of judicial thought and political ideology. The Supreme Court’s harsh reaction to a petition on migrant labourers during the lockdown that conveniently aligned with the central government’s view again underscored misplaced deference to the central government.
Judges would do well to remember Justice H R Khanna’s caution in Kesavananda Bharati v. State of Kerala in restoring the independence of the Court and insulating it from political ideology. In the backdrop of the recent US presidential elections, we can only speculate on the outlook of the world if Bush v. Gore (2000 US presidential elections) were heard by different judges. It also remains a matter of conjecture on what the outlook for Kashmiris would have been had the Supreme Court upheld basic features of federalism, judicial review, and fundamental rights of Kashmiri citizens
The writer is a Delhi-based lawyer
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