With the phrase ‘smell the coffee’, the pendulum of the Indian Constitution seems to be shifting again towards the Centre. During the hearing on the COVID-19 crisis, the ‘coffee’ observation made by Justice Chandrachud may be remembered for long, but to assume that democracy is back to normal, and that the judiciary has regained its old glory and erased the constitutional stains that it had acquired in the last few years, is far from reality. It would be hyperbolic and an over-simplification to assume so.
It's better for us to give the judiciary, led by the Supreme Court, more time, before we reach any definitive conclusions.
There is no denying the fact that in the last few months, especially since the dreaded dark shadows of the COVID-19 second wave engulfed the country, the high courts and lately, the Supreme Court, have surprised their critics with their scathing observations on the treacherous functioning of the state governments led by the Modi government at the Centre.
It is the biggest human crisis the country has seen since Independence, but governments criminally left citizens to die; the apathy and the incapacity of the central government was so stark that the media — which till then was seen to be (largely) sympathetic to the Modi government — wrote in bold letters that “The State Has Failed”; “The Government is MISSING”, etc.
How Our High Courts Shook Up State Govts For COVID Mismanagement
When citizens had lost all hope and nobody was sure whether he or she would awaken the next day, our high courts jolted the state governments with their strong indictments. The Delhi High Court’s order to the Modi government on the scarcity of oxygen, that the government should “beg, borrow or steal, but provide oxygen to the people,” still rings in my ears.
The high courts across the country were not in the mood to spare the governments, but the Supreme Court still seemed to be wanting in its duties. But with the new chief justice taking charge, the court suddenly seemed to be regaining its vigour of yore.
This was the court which was severely criticised for its lack of moral courage to dissect the constitutionality of important issues like the abrogation of Article 370, the passage of the Citizenship Amendment Act and the Farm Bills; hundreds of habeas corpus petitions were left hanging for months for its disposal; the Supreme Court shut its eyes to the biggest migration of its citizens during the first lockdown when the whole world was pained to see the miseries of the poor.
The highest court of the land was also seen to be in no hurry, or rather it was discriminatory in its disposal of petitions related to the ruthless imposition of the sedition laws and illegal confinement of hapless citizens and journalists by authoritarian governments.
How a ‘Leaderless’ Judiciary Regained Energy
Civil society wondered if the Supreme Court had ‘lost its spine’ for eternity. It was being debated if the common man could hope to get justice from the highest court vis-à-vis the government. Eminent lawyers like Prashant Bhushan and Dushyant Dave and a few former Supreme Court judges minced no words and said that judges seemed to be fearful of the Modi government.
This was the time when judges were scrambling to find divine virtues in the prime minister. One senior judge was heard saying “the prime minister is a versatile genius”.
And for this very judge, the rules were ‘changed’ to make him the chairman of the NHRC. It was at this time that the Supreme Court, that had been robbed of its constitutional grandeur and the majesty of justice, saw a change when Justice SA Bobde retired and Justice Ramana took over the leadership of the court. The judiciary that had appeared to be leaderless for some time regained its energy, and governments were scrambling for cover. Piercing questions were asked, and incompetence was taken to task.
How the Supreme Court ‘Made’ Modi Govt ‘Accountable’ For Bungled Vaccine Policy
There are two things that need to be specifically mentioned, which give hope that just like the Emergency during Indira Gandhi’s time, all is not lost and that the Supreme Court has risen from its deathbed. On the COVID-19 issue, the Supreme Court bench led by Justice DY Chandrachud, so authoritatively exposed the vaccine policy of the Modi government that it was left with no alternative but to announce that the Centre would buy the vaccines for the states, and common citizens would not have to pay for the vaccination.
Earlier, the bench did not buy the Centre’s argument and shred the Centre’s vaccine policy to pieces. It said, “please smell the coffee... we want you to smell the coffee and realise what’s happening in the country and make the necessary amendments.”
The court had literally told the government that it “neither had the policy nor the vision”. And that the government’s actions were “devoid of any rationale”. The court was so furious and authoritative that it ordered the ‘file noting’ to be produced before the bench.
That shows that the Supreme Court had felt that the court was not being told the whole truth about the vaccine policy.
After this, the Modi government was left with no choice, and the prime minister had to address the nation.
How Judiciary Stepped In To Save Innocent Citizens From Sedition Lair
In the last few years, the space for individual liberty and media freedom has been shrinking rapidly due to the executive’s ‘motivations’. To stop journalists and citizens from criticising the government, sedition laws have been invoked, random FIRs have been lodged against journalists, and arrests have been made. Vinod Dua was victimised by state agencies for being critical of the Modi government. Several FIRs were filed against him under sedition laws. The court exonerated Dua of all charges.
In another case, the court moved a step forward.
The court not only “restrained the Andhra Pradesh government from taking any adverse action” against two local TV channels, but also said, “everything can’t be seditious. It is time we define what is seditious and what is not.”
Over the years, different governments have been misusing the sedition laws to fix their critics despite the Supreme Court’s order in the Kedarnath case in 1962.
Baby Steps for the Supreme Court
In today’s India, when individual freedom and liberty are being mortgaged in the name of national security, it is important that courts lay down guidelines and ensure their implementation.
But based on the recent judicial initiatives it will be wrong to assume that the judiciary has permanently regained its past glory. These are baby steps, and the road ahead is long. We have to wait and see if these judgments are results of the creative vitality of a few judges or the judiciary as an institution has broken its inertia and realised its constitutional obligation in a democracy.
It is also important to remember that the government is down at the moment, feeling the heat of the people’s anger. The real test of the judiciary will be when the government gets out of the crisis and regains its earlier authority. That will be the time for the Supreme Court to really ‘smell the coffee’.
(Ashutosh is an author, and at present, the editor of satyahindi.com. He tweets @ashutosh83B. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)