These are difficult times because the centre has ceased to hold. Our politics now tends towards the extremes, mocking constitutional imperatives and ignoring the realities of a complex plural society: Realities that demand an embrace of moderation, inclusion and accommodation in the ordering of national affairs. The lines between the decisive and authoritarian exercise of power are now blurred. And that blurring is rooted in the negation of political morality, which demands that power be tempered by constitutional bounds. Hence, institutions of our liberal democracy are under siege, their promised autonomy breached and compromised. We face a widely-held perception of judicial overreach and the unsettling of a constitutionally-ordained dispersal of power between the three organs of the state. Major issues are impacting the quality of democracy and the nation’s future is being left to the wise “brethren in robes”.
Developments in the aftermath of the Supreme Court’s decision in the Sabarimala case have reignited a national debate on the profound question of the limits of judicial power in a parliamentary democracy. However, the rationale of its review jurisdiction remains undented, and rightly so. The Court’s expansive and creative exercise of judicial power has been accepted by the nation as well, primarily because of its stellar contribution towards the broadening of human rights by leaning on the dignitarian impulses of the Constitution, and, invoking the doctrine of progressive realisation of rights. By reading the right to dignity into Article 21 to the pinnacle of the rights hierarchy, the Court has validated its role as the arbiter of constitutional morality. The profound scholarship that distinguishes the Court’s landmark judgments on human dignity in cases including Navtej Johar (2018), Nambi Narayanan (2018), Puttaswamy (2017) and M Nagaraj (2006) does the nation proud. However, recent blips noted in some of its pronouncements and observations raise issues of consistency and certitude in the evolution of our constitutional jurisprudence. There has been ambivalence on part of the Court in addressing issues of legality of the government order deporting the Rohingya who have sought refuge in India. This despite a formidable argument in favour of the Rohingya when tested on the touchstone of established human rights jurisprudence: That is somewhat disappointing. Likewise, the Court’s approach in its 2:1 majority judgment, in August this year, in the case of the arrest of the five rights activists, and, denying the setting up of an SIT for fair investigation contrary to several precedents, invited an eloquent lament from D Y Chandrachud, the dissenting judge, who suggested a “soulful requiem to liberty” in the absence of fair criminal investigation. There is an inexplicable difference in approach between nudging the government for legislative action in cases involving large-scale infraction of human rights, and, more recently, its observations in the CBI case, scoffing at the breach of confidentiality in relation to the freedom of expression and the right to be informed. This has raised concerns about an element of uncertainty in the exercise of its review jurisdiction, prompting a public intellectual to comment that “the logic of what the Court will subject to scrutiny and what it will let pass is as mysterious as God’s propensity to inflict suffering…” (Pratap Bhanu Mehta, IE, November 22). Indeed, the Court’s observations during the hearing concerning issues of public interest do not appear to gel with its recent declaration that “freedom of speech and expression in different forms is the élan vital of sustenance of all other rights and is the very seed for germinating the growth of democratic views…” (Kodungallur Film society & ANR. vs Union of India & Ors, 2018)
We are witnessing a time when assaults on human dignity and its accompanying values of liberalism, inclusion and equality present a grave challenge to the idea of an India that venerates the rule of law, plurality and democracy. Hence, the apex court as the guardian of the core values of our republic, is expected to be consistent in its pronouncements to advance equity, equality, democracy and humanitarian morality enshrined in the national charter. After all, the progressive enlargement of the court’s expansive writ is justified primarily in terms of its role as the upholder of the principles of egalitarian democracy, “a duty plainly laid down upon them by the Constitution.” (per Patanjali Sastri, CJ, in V G Row, 1952), followed in Shayara Bano (2017) and Brajendra Singh Yambem (2016).
The Court has justified judicial lawmaking in seeking to fill the gaps in legislation as part of an interpretative exercise exclusively within its writ. The weight of its authority and acceptance of an extensive reach of its judicial imprimatur, however, is rooted in the popular acceptance of its intellectual integrity. Undoubtedly, the Court’s ability to enlist for its decisions an “uncoerced allegiance” of the community accounts for its privileged role as the supreme constitutional arbiter. But, in an age which marks the end of deference, the Court will be repeatedly required to summon moral authority and wisdom to maintain its unique role as the nation’s conscience-keeper. For this, it must recognise that Pascal’s spirit of “self-search and self-reproach” will best subserve to sustain its authority. Having itself disavowed any claim to judicial infallibility in the spirit of intellectual humility, it is clear that the Supreme Court can, truly, “be a light unto the nations”.