Guiding, nurturing and developing Indian democracy has been the Supreme Court’s true metier.
While quantifying lawyer Prashant Bhushan’s sentence for contempt of court on Thursday, the top court must remember its constitutional imperative and its unique role in shaping the destiny of this nation.
It was with trembling hands that Justice S.H. Kapadia, as CJI, read the order annulling the appointment of P.V. Thomas as chief vigilance commissioner, on March 11, 2011. He knew the political significance of his judgment. By fashioning out the doctrine of institutional integrity and striking down the Manmohan Singh’s government’s seemingly legal choice, the apex court’s order indirectly questioned the rectitude of Singh who, until then, had the standing of an honest prime minister.
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From that moment onward, the Supreme Court became the keeper of integrity and the public interest, while the government an inveterate violator, which had to be chastened, castigated, watched over by judges at every step of the way.
Justice Kapadia’s order was only the first in a series of judicial admonishments that came raining down on the Manmohan Singh government. The apex court decisions – especially the order on cancellation of 2G and then coal licenses – stripped the UPA of its political legitimacy. The top court not only canceled the 2G licenses, it also dictated the new telecom policy when it asked the government to auction all the telecom spectrum henceforth.
Some may argue that the court went overboard, even stepped into the province of the executive. Be that as it may, the apex court by its constant invigilation reined in a venal, wayward UPA II. But since 2014 the same court has spectacularly failed to judicially restrain a rampaging majoritarian government. The habeas corpus petitions filed by the political detainees of Kashmir, the challenge to the Citizenship (Amendment) Act and electoral bonds, the petition challenging the revocation of Article 370 of the constitution have all been all lying in the dockets of the top court, waiting with a fading hope for their judicial assessment.
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The Supreme Court that applied the principle of institutional integrity to an IAS officer while revoking his appointment on the mere ground that his name figuring as accused Number 8 in a 20-year-old chargesheet, refused to order a probe in the Sahara-Birla diaries in which the name of the top political functionaries figured as the beneficiaries of illicit monetary transfers. The court also dismissed the petition asking for a probe into the mysterious death of Judge B.H. Loya who was presiding over the Sohrabuddin-Kausar Bi-Tulsiram Prajapati extrajudicial killings in which the present home minister happened to be a key accused.
More problematically, the top court watched silently even as the criminal cases in fake encounters whose investigation the court itself had supervised over many years collapsed at the very threshold, at the stage of framing of charges itself.
The top court has both saved and failed India in the seventy years of its existence. Without the top court’s rulings on basic structure doctrine, its purposive reading of fundamental rights and its strict judicial review of scores of illicit executive actions and invalid laws passed by legislatures, India would have been a different country. The top court has played the role of sentinel of Indian democracy on multiple occasions.
But the court has also failed this nation at some of its darkest moments. The era of the Emergency was one such juncture when many judges of the top court betrayed the soul of the Indian constitution.
In the 70 years of its brief existence, the court for the second time is confronted by an authoritarian government which believes in a committed bureaucracy, a packed judiciary and a supine press. In the last six years the court has failed to staunch this rot. Its orders on the petitions asking for a probe in the Rafale deal, the PIL seeking humanitarian measures to help the migrant workers, the petition demanding the transfer of funds from the opaque PM CARES Fund to the audited National Disaster Relief Fund (NDRF), are problematic not only for their infirm judicial reasoning but also the obsequious tone and unctuous language in which they have been worded.
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On Thursday, as the Justice Arun Mishra-led bench convenes to pronounce its sentence, the court must ask itself: Having invented the principle of institutional integrity, has the court applied it uniformly to cases across political dispensations? Has there been judicial consistency in the functioning of the top court? Has the top court itself displayed transparency and public accountability in its functioning that it had in the past demanded of other institutions?
The court must also reflect on the recent events in its own sanctum sanctorum. The unprecedented 2018 press conference by the four senior most judges after the CJI questioned the manner in which cases in which the executive had high stakes were assigned and the way the CJI mastered the roster.
The way the court handled the Prasad Education Trust case and the constant blocking by the executive of some of the names of the judges recommended by the collegium are the other most egregious examples when the court’s standing was called into question from within the institution. The court must remember that these and more questions will be probed and reckoned with by history. And if they are not adequately addressed, the glorious institution of the Supreme Court of India may itself stand in contempt of its noble position in the constitution of India.
