In a surprising departure from its usual conservative stance, the Supreme Court of India has recently delivered two decisions signalling a potential shift in its approach.
This metamorphosis in the judiciary’s disposition was epitomised recently on 20 February, as the Court overturned the electoral victory of the BJP’s Manoj Sonkar as Chandigarh Mayor, hence declaring the Aam Aadmi Party-Congress coalition candidate, Kuldeep Kumar as the rightful winner. Central to this pronouncement was an egregious violation of the sanctity of the electoral process: an act of malfeasance wherein an officer was caught on camera brazenly tampering with the ballot papers; the Court has initiated an action against him for violation of the electoral process.
Earlier, on 15 February, after a prolonged delay of more than half a decade, the Court struck down the controversial electoral bonds scheme, calling it “unconstitutional” and “arbitrary.” Shrouded in controversy and ambiguity, the scheme was introduced in 2018 ostensibly to ensure transparency and accountability in political funding while paradoxically veiling the identities of the donors. The Court ruled that the scheme provided a “cloak of secrecy” to limit the voter’s right to know, and rightly so.
Interestingly, the BJP remains the largest beneficiary of the electoral bonds scheme to date. According to reports, till March 2023 the BJP has garnered the lion’s share of nearly 55 per cent of the funds that is, ₹6,566.11 crores, while its closest rival Congress got a mere 9.3 per cent amounting to ₹1,123.29 crore. While one cannot deny the nobility in intent, it is hard to ignore the delay essentially allowing the ruling BJP to amass massive political funding. What good use of this decision now, I am compelled to think.
The two judgments serve as a poignant reminder of the pivotal role the judiciary plays within a constitutional democracy. However, amidst this commendable display of judicial fortitude, one cannot help but reflect on the broader trajectory of the Court’s recent rulings, particularly in light of its handling of historically and politically significant cases such as the Babri Masjid, Article 370, and marriage equality for queer romantic couples.
So, how does one rationalise the Court’s shift? Is it indicative of a genuine realisation and therefore signalling a move from its erstwhile perception as a conservative institution towards a more progressive one? Or has the Court extended a fleeting gesture of strategic posturing during moments of reputational crisis?
370, Ayodhya, Same Sex Marriage, CAA, etc
The presumptive and assumptive understanding is that the Court is doing damage control and wants to be seen as an upholder of the rule of law and the Constitution. While the recent decisions undeniably attest to the Court’s capacity for proper adjudication, they also raise fundamental questions regarding the consistency of its role as a truth-speaking institution. In the past, the Court has delivered such one-off performances after a string of conservative decisions to maintain a facade of independence and respectability. For instance, in the aftermath of the Court’s complicity in the emergency of the 1970s, the Court went ballistic in Maneka Gandhi v Union of India (1978) to reverse its decades-old narrow interpretation of Article 21, incorporating the due process guarantee.
A closer scrutiny of the Court’s performance in the last few years, however, suggests a discernible underlying pattern of the Court’s reasoning behind approaching specific cases listed before it. It is apparent that the Court has delineated a clear distinction between the government’s or the ruling party’s actions impacting the nation-state and the routine administrative aberrations.
The Court’s endorsement of the Central Government’s abrogation of Kashmir’s constitutional autonomy stands out as a textbook case in which it upheld a patently unconstitutional political move.
Similarly, the Court’s acknowledgement of the criminal nature of the acts that occurred on 6 December 1992, and the subsequent allocation of the disputed land to the majority community, exacerbates the matter. Moreover, the Court’s decision to hand over five acres of land to the Muslim community elsewhere adds another layer of complexity to the issue. The trajectory of the electoral bonds case itself is a solid example of the Court’s acquiescence in executive actions – it took the Court more than five years to finally decide on it.
The Court’s image as a truth-speaking institution has suffered a massive blow even beyond the politically difficult cases. As I have mentioned above, actively refusing to accommodate the demands of legalising the marriage of same-sex couples, the Court has effectively abdicated its responsibility by leaving it to the mercy of the legislature. It’s deeply disturbing to see the Court expecting the government to bring in such reform when history has been teaching us the lessons otherwise. Unfortunately, as of today, we know for a fact, that the current Parliament is not inclined towards a commitment to the protection of the rights of minorities. The amendments to the citizenship law and the abrogation of Kashmir’s special constitutional status are hard to ignore or dilute as evidence of neglect by the present government.
The Court’s inaction on the petitions challenging the Citizenship Amendment Act, 2019 adds to the travesty of the rule of law and judicial review. Essentially reinforcing the state with power time and again, the Court has proven itself to be more executive-minded than the executive itself. The Court’s interpretation of the bail provisions under the Unlawful Activities Prevention Act (UAPA) has practically made the grant of bail difficult with the Court recently stating that “bail is an exception and jail is the rule under the Unlawful Activities (Prevention) Act.” This best illustrates what one can expect from the Court regarding personal liberty. The case in point is the JNU PhD Scholar and activist Umar Khalid’s repeated denial of the bail hearing, resulting in his withdrawal of the plea a week ago. His plea has been adjourned fourteen times in the last four years. Let that sink in.
Against this bleak environment of justice, it is indeed a welcome change with the two recent decisions but the recent urgency shown by the Supreme Court should not obscure one’s attention from the silence maintained on crucial constitutional matters. The Supreme Court must heed these decisions as a call to restore and reaffirm its commitment to justice and equality, lest it further erode the public trust in judicial integrity.
(Burhan Majid is a doctoral fellow at NALSAR University of Law, Hyderabad, working on the constitutional accommodation of religious minorities in India. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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