When the Supreme Court Echoes Populist Sentiments, It Risks Undermining the Constitution’s Voice

The Supreme Court stands as the lone institution commanding unanimous respect across all divides. Its words carry enormous weight. Even casual remarks made in passing, and absent from formal orders, reverberate far beyond the stately courtrooms at Tilak Marg. Such is the weight of the court’s voice that even its oral observations shape public belief: if it calls something wrong, the people believe it is wrong. 

It is, therefore, deeply problematic when the court, speaking with the gravitas of the final authority, slips into performative overreach and substitutes the voice of constitutional reason with the chorus of majoritarian sentiment. This troubling shift was evident in three recent hearings: two involving refugees, and one concerning the arrest of an academic for a Facebook post.

Of ‘fanciful ideas’ and ‘dharamshalas’

On May 16, a Supreme court bench heard an application alleging that Rohingya refugees being deported to Myanmar – children, women and the infirm included – were abandoned by Indian authorities in the Andaman Sea. 

Finding the accompanying evidence insufficient, the bench declined protective relief. While the correctness of this decision may be open to debate, given judicial discretion in interim matters, the bench’s dismissive comment during the hearing drew widespread attention. 

Refusing to grant a stay on further deportations, it remarked, “When the country is passing through a difficult time, you come up with fanciful ideas.” Three days later, another bench dismissed a petition filed on behalf of a Sri Lankan Tamil refugee, observing that “India is not a dharmshala.” 

Let us take a moment to absorb each of the two remarks. The first is no mere slight. It dismisses urgent concerns about vulnerable refugees as “fanciful ideas” and reprimands the petitioners for even bringing them to court. 

Yes, the country is facing challenges, but does that mean the court should shut its eyes to human rights violations? Protecting basic rights and dealing with “difficult times” are not mutually exclusive. 

The second remark is even more disquieting. It substitutes judicial compassion and constitutional intent with populist impatience. Although India has not ratified the 1951 Refugee Convention or its protocol, its settled obligations towards refugees flow from other key international treaties and customary international law. 

For decades, India has offered refuge to Tibetans, Afghans, Rohingyas and Sri Lankan Tamils, not just as a matter of policy, but as an expression of its civilisational values. Reducing this legacy to the image of a “dharmshala” marks a retreat from empathy, rewriting India’s commitment to human dignity. 

In both cases, the court’s sarcastic, ideological tone yields to a notion of “collective conscience” that is alien to justice. Our Constitution speaks in a measured, reasoned, dignified and humane voice, unaffected by popular mood, no matter how strong it is.

SIT for a Facebook Post

The echoes of ‘fanciful ideas’ had barely faded when the same bench heard a writ petition by academic Ali Khan Mahmudabad. Mahamudabad was challenging his arrest by the Haryana Police over a Facebook post that a village sarpanch and a local politician-turned-state functionary had found seditious, subversive and offensive to women. That no reasonable person could reach the same conclusion is another matter. 

In such matters, the court’s primary concern is whether, on the face of it, the FIRs leading to the arrest disclose any cognizable offence. Since the FIRs in this case were based on Mahmudabad’s Facebook post, the court’s task while granting interim relief was limited to assessing whether his words prima facie constituted a criminal offence. 

The court granted him interim bail with unduly harsh conditions and also constituted a Special Investigation Team of three IPS officers “to holistically understand the complexity of the phraseology employed and for proper appreciation of some of the expressions used” in his post.

If Mahmudabad’s “complex phraseology” is too difficult or nuanced for even the Supreme Court to decipher, how exactly is a police team expected to investigate it? More baffling still, how did a sarpanch in Haryana understand it enough to initiate criminal proceedings? 

The situation is reminiscent of Liversidge v Anderson before the House of Lords, where the majority agreed that the phrase “if the Secretary of State has reasonable cause to believe” could be stretched to mean “if the Secretary of State thinks he has reasonable cause to believe.” Lord Atkin dissented and, invoking Alice in Wonderland, held:

"I know of only one authority which might justify the suggested method of construction. ‘When I use a word’, Humpty Dumpty said in a rather scornful tone, ‘it means just what I choose it to mean, neither more nor less’. ‘The question is,’ said Alice, 'whether you can make words mean different things’. ‘The question is’, said Humpty Dumpty, ‘which is to be master that's all”… [the question is whether the words ‘if a man has’ can mean ‘If a man thinks he has’. I am of the opinion that they cannot, and the case should be decided accordingly.".

That said, in Mahmudabad’s case, the oral observations made by the bench are just as, if not more, worrisome. After suggesting that the post may have been a “dog whistle”, the bench made the following cryptic remarks: “Somebody with an analytical mind will be ‘conservant’ of the language”, “some words have double meaning”, “the words used, left on north side, will target the south side”. 

But the most chilling note came at the end of the hearing when, commenting on students and academics who were writing and speaking in support of Mahmudabad, the bench made an aside: “We know how to deal with them too. They are also within our jurisdiction”. 

Academics and students will, and must, write and question; it is not only their right but also their solemn constitutional obligation. Article 51A compels them to “foster a scientific temper, humanism, and a spirit of inquiry and reform”. Silencing them strikes at the heart of the constitutional vision and erodes the very foundations of an enlightened society. 

The Supreme Court’s majesty is the cornerstone of the people’s faith in justice and the rule of law. It is therefore disconcerting when the court abandons compassion for prevailing public emotion. Unless judgments rest strictly on law, and courtrooms remain safe spaces protecting every participant’s dignity, our justice system risks grave compromise. I quote the legendary Henry Brougham’s defence of Queen Caroline in the House of Lords in 1820, when she was sought to be stripped of her title:

“My Lords, I pray to your Lordships to pause. You are standing upon the brink of a precipice. It will go forth your judgment, if it goes against the Queen. But it will be the only judgment you ever will pronounce which will fail in its object and return upon those who give it. Save the country, my lords, from the horrors of this catastrophe — save yourselves from this situation — rescue that country, of which you are the ornaments, but in which you could flourish no longer, when severed from the people, than the blossom when cut off from the root and the stem of the tree”. 

Saif Mahmood is an international lawyer and legal scholar. 

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