In my previous analysis of the Supreme Court’s recent judgment involving the tenure extensions granted to the director of the Enforcement Directorate (ED), I had wondered – somewhat rhetorically – “does the Supreme Court have any respect for itself, and for its own orders?” The context for this was that the Supreme Court had found that the ED director had been kept in his role, in flagrant breach of the Supreme Court’s own orders, for a period of one year and eight months; but far from visiting any consequences upon the executive, the SC allowed the director to stay on in his role until the end of July, to facilitate “a smooth transition.”
But in light of fresh events, one must now not only wonder whether the SC has any respect for itself and its own orders, but whether it has respect for the rule of law. In the aftermath of the judgment, the executive filed an application asking for an extension for the ED director until the end of October, in view of the fact that his input was needed for the global FATF review. Notice the breathtaking audacity here: far from being chastened by a Supreme Court holding that it had breached a direct order not once, but twice (in granting the ED director two extensions), the executive asked the court to sanction a further extension of a continuing illegality.
One would think that, in a jurisdiction that is formally committed to the rule of law, and to the principle that government is not above the law, such an application would not only be dismissed, but that punitive costs would be imposed upon the executive for wasting judicial time (after all, the judiciary has been quite eager of late to impose costs on petitioners for wasting its time). One would be wrong. After a brief hearing, the Supreme Court sanctioned a further extension to the ED directors’ tenure “in the public interest”, until the middle of September (half the time the executive had asked for – as if what was happening was a negotiation for a salary increment, and not a serious issue involving the rule of law).
In doing so, the Supreme Court has today sent a signal that in India, there is one entity – and one entity alone – that is entitled to take advantage of its own wrong, not once, not twice, but many times over; and that there is only one entity that can refuse to comply with a Supreme Court order, and not only get away with it, but benefit from it. That entity is the Union government. One would be hard-pressed to imagine a more destructive or damaging undermining of the rule of law.
Two consequences follow. One is that Thursday’s order will only further embolden the executive to treat the constitution and the law as optional. Because not only are there no judicial sanctions for breach, breach is actively incentivised. In such a circumstance, who would not take advantage of the impunity that has been so generously offered? Wouldn’t you?
The second is a more long-term consequence, although as troubling. If the Supreme Court is unable – or unwilling – to enforce its own previous, direct orders (not once, not twice, but many times) in the face of executive recalcitrance, then what hope – if any – ought citizens to have in its ability or willingness to adjudicate cases involving serious and far-reaching constitutional breaches by the executive? Would not such cases and constitutional challenges be effectively turned into a formality, where the outcome is known, and everyone simply goes through the motions? We are aware of jurisdictions where that is the case; and unfortunately, orders such as today’s raise a disquieting sense of proximity. After all, as a senior counsel once told a court – in what seems an eternity ago – “as nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air.”
This article was originally published on the author’s blog. It was republished with permission.
Gautam Bhatia is a lawyer.