Opinion Across democracies, supreme courts’ legitimacy, autonomy are under question

But this question of “declining legitimacy of a Supreme Court” is a concern of all democrats, even in India.

A brief survey of democracies shows us the centrality of this issue of a court’s autonomy. In Poland, for example, attempts by the Law and Justice party, to undermine the supreme court’s independence, and stuff it with loyalists, have resulted in the European Union warning the Polish government that its membership of the EU was at risk. The supreme court in Brazil regained some legitimacy when it struck down the changes framed to prosecute former President Lula by the crusading Judge Moro. They did this against the wishes of the incumbent government of Jair Bolsonaro. In the US, the recent flurry of decisions ranging from the overturning of the 50-year-old judgment of Roe versus Wade on the right to abortions to the affirmation of gun rights deriving from the Second Amendment, despite the horrific Uvalde shooting in Texas, to the striking down of a New York Law restricting the right to carry a gun publicly without “proper cause” or “good reason”, to limit the power of the Environment Protection Agency (EPA) to reduce greenhouse gases across states, even as the planet is on the brink of a climate catastrophe, has severely eroded the court’s legitimacy. This is a court that is being seen as committed to a certain conservative political ideology and not to the constitution. This is what has made Senator Warren so angry.

Supreme courts need to be vigilant about these threats to their “legitimacy”. They need to stand not just some distance away from the dynamics of political power, to avoid being pulled under by its eddies, but also some distance above these dynamics so that they can reflect on their privileged position and their sacred responsibility. The constitution is not just a paper document. It is a moral code for our times on which we must continuously reflect. It must govern our thought and behaviour. It must rule. Whatever may have been the journey of individual justices to the court, their arrival requires them to cut the cords that brought them there. Previous obligations need not be carried any further for they are now custodians of the constitution and not representatives of special interests. They carry no debt.

On this question of “legitimacy”, there are at least three aspects that any student of constitutional democracy must consider. The first is the court’s role in enforcing the core principle of “limited government”. The second is its recognition, and endorsement of the fundamental distinction between “rule of law” and “rule by law” — prepositions matter. And the third is its role as the promoter of “constitutional morality”. I offer these three responsibilities of the court since, I suspect, constitutional scholars in India may add a fourth, the “committed court”, which was a key dimension during the Emergency. It subsequently fell by the wayside.

The principle of “limited government”, the defining principle of any constitutional order, is based on the belief, borne out by history, that governments, even democratic ones, will always tend towards autocracy. When they do, because the executive controls the machinery of government and often tends to misuse it — particularly in situations when they dominate the other institutions of the state — the court must clip the executive’s wings. It must speak on behalf of the rights of the ordinary citizen. When the executive becomes tyrannical by legally harassing dissenters with false cases or arresting opponents, courts have the duty to call out this tyranny. They sometimes misread their role as implementers of government policy, which they are not. Their primary responsibility is to serve as checks against executive overreach. This important distinction is often lost on the court’s officers. It may not be a profound point that I am making here but it requires to be restated in these dark times of declining legitimacy.

The second is the crucial distinction between the “rule of law” and the “rule by law”. According to the Stanford Encyclopedia of Philosophy, “The rule of law is supposed to lift law above politics. The idea is that the law should stand above every powerful person and agency in the land. Rule by law, in contrast, connotes the instrumental use of the law as a tool of political power. It means that the state uses law to control its citizens but tries never to allow law to be used to control the state”. “Rule by law” allows the arbitrary exercise of power masquerading as the “rule of law”. Authoritarian regimes hide behind rule by law. That is why they seek to control the appointment of judges. By controlling the judiciary, regimes are able to shift the dispute from the domain of politics to the chambers of the courts. Ideological and partisan judgments then become more likely. This has been the long-term game plan of Senator Mitch McConnell who, in recent years, relentlessly campaigned for appointments to the US supreme court giving it its conservative turn.

The third is to see the court as a custodian of constitutional morality. As democracy spreads and colonises aspects of social and political life, the court must immediately enter the playing field and regulate this spread. It must remind politics of what is permitted and what is proscribed, especially since the dynamics of politics are driven by power and not by ethics. To our dismay, we saw this erosion of constitutional morality most clearly in the case of Fr Stan Swamy who was denied a straw, denied decent healthcare, and denied bail all in the name of “rule of law”. Across democracies worldwide, this masquerade of “rule by law” posing as “rule of law” has grown and needs to be consistently exposed. There is no room for complacency.

The writer is the DD Kosambi Visiting Professor at Goa University. He recently co-edited Companion to Indian Democracy: Resilience, Fragility, Ambivalence, Routledge, 2021. Views are personal.