The decision of the Supreme Court on the electoral bonds scheme stands in stark contrast with a long series of judgments that appeared to go systematically in favour of the government at the Centre. Is the court back on track in its role of custodian of the constitutional letter and spirit, and as the institution that protects freedoms and liberties against state transgression? And why did it let itself get derailed in the first place?
For decades, India’s Supreme Court has been admired across the globe because of its ability to resist, and stand up to, executive power. Till recently, the Court’s career had only been really tainted by one episode, the Emergency, about which Justice Y V Chandrachud, the longest serving Indian Chief Justice, came to show remorse later. Two months after he was controversially sworn in as chief justice by the Janata Party — large sections of the judiciary protested his appointment because of his habeas corpus ruling — he said in a 1978 speech: “I regret that I did not have the courage to lay down my office and tell the people, well, this is the law”.
After almost a decade of decisions in which it appeared to give a domineering Executive the benefit of every doubt, the Supreme Court of India was hardly recognisable, till the electoral bonds decision. The Indian trajectory is not unique here. Everywhere, in the name of the people, populists fight against the independence of the judiciary. Look at the manner in which judges and their role are viewed by Viktor Orban, Jaroslaw Kaczynski or Benjamin Netanyahu.
As early as July 2014, the government of Prime Minister Narendra Modi promoted a constitutional amendment in order to create a commission which would be responsible for appointing and transferring judicial officers and which would consist of the CJI, two senior judges, the Minister of Law and Justice and two “eminent personalities”. These two personalities would have been selected by a committee comprising the CJI, the PM and the Leader of the Opposition in the Lok Sabha. This bill was passed in Parliament, but the Supreme Court quashed it in 2015 because it would affect the independence of the judiciary, guaranteed, in its view, by the Collegium system.
However, the Supreme Court began to drop the ball with regard to its vigilance against the crossing of lines by the Executive. In 2017, the Court refused to examine a petition alleging dilution in the Whistleblower Protection Act and in 2018 it validated the Aadhaar Act that the government had passed as a money bill — like the Electoral Bonds Bill — in spite of the fact that it fell well outside the limits set by the Constitution for money bills. These bills solely concern taxation and government spending — that’s why they do not need to be examined by the Upper House of Parliament, something the Modi government found to be convenient because the BJP did not have the majority in the Rajya Sabha.
Four senior-most members of the Supreme Court — Justices Kurian Joseph, J Chelameswar, Madan Lokur and Ranjan Gogoi — held a press conference to make their criticism public against Justice Misra’s functioning in January 2018. But Justice Misra’s successor, CJI Gogoi seemed to follow in his footsteps, confirming that the problem had spread to the Court as an institution. This was evident from the fate of crucial cases, including the electoral bonds case. In 2019, the Supreme Court judgment on the MLAs who had defected from Congress to BJP — enabling the latter party to form the government in Karnataka in spite of its electoral defeat — made a mockery of the Anti-Defection Law.
Similarly, the Court kicked the can down the road on the constitutional challenge to the abrogation of Article 370, and the splitting of the erstwhile state of J&K into two Union Territories, on reservation for economically weaker sections, judicial review of money bills, electoral bonds and the challenge to the Citizenship Amendment Act.
If what constitutional law scholar Gautam Bhatia has called “judicial evasion” remained the Supreme Court’s favourite strategy, when it did make decisions, none of them challenged the government. For instance, it dismissed the plea to transfer the PM CARES Fund, that had received large sums of money during the Covid-19 crisis to the National Disaster Relief Fund and upheld the validity of the draconian Prevention of Money Laundering Act (PMLA), including the investigative powers of the Enforcement Directorate.
The 10 per cent EWS quota was upheld, as was the legality of the government’s 2016 demonetisation move, and the abolition of Article 370 as well as the downgrading of J&K into a Union Territory, which senior lawyers with an impeccable reputation, like Fali Nariman, considered as poor decisions.
With the decision on electoral bonds, the court seems to have retrieved some of the ground it had steadily ceded to the Executive. It remains to be seen, however, if, on this decision and in cases in the future, it can stay the course.
The writer is a senior research fellow at CERI-Sciences Po/CNRS, Paris, professor of Indian Politics and Sociology at King’s India Institute, London
With the decision on electoral bonds, the court seems to have retrieved some of the ground it had steadily ceded to the Executive. 
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