In the biting cold of the January 2019 winter, while the protests against the Citizenship Amendment Act and the National Register of Citizens were raging in Delhi, a four-month-old child of a protesting mother died of pneumonia. Hearing a public interest petition filed by a 12-year-old seeking a ban on children participating in demonstrations (mark the irony!), the Chief Justice, SA Bobde observed: “Can a 4-month old child be taking part in such protests?” That for countless infants born to homeless mothers living on the streets, surviving the elements has always been matter of luck, which possibly escaped the mind of the Chief Justice.
As winter turned to spring, and the pandemic forced the country into lockdown, migrants left without a source of livelihood or transportation began walking back to their home villages. Newspapers carried heart-breaking images of death and destitution. Yet, this time, the court chose to defer to the government in its handling of the lockdown, or the lack of it. Never mind the equally horrific pictures of young children walking miles, or suddenly finding their parents dead out of sheer exhaustion.
Take another example: During the high profile hearing of the contempt of court case against lawyer Prashant Bhushan, who had tweeted about the Chief Justice’s closeness to the ruling party, Bhushan had filed several applications questioning the process adopted to punish him, such as whether statutory requirements had been followed. These applications were dismissed perfunctorily. Remember, since it was already at the apex court, there was no appeal possible, making the denial of hearing egregious.
When commentators talk about how the Indian Supreme Court, in its polyvocality was always a flawed apex court, they miss the fact that over the last two years or so, it has begun to even abandon the veneer of bipartisanship that it was famous for. The deference to the government is almost without apology. It certainly doesn’t help that the only cases in which the attorney general has given permission to prosecute citizens for contempt of Court have been in respect to those insinuations that tie the court to the ruling party at the Centre — never mind that far graver allegations have been levelled at the court contemporaneously.
It doesn’t help that in recent times, both the supreme courts of the United States (Donald Trump’s attempt at overturning the result of the general election) and the United Kingdom (the Prime Minister’s decision to prorogue Parliament for unhindered sway over Brexit negotiations) have unequivocally rebuffed the executive.
That doesn’t mean that these courts haven’t been controversial themselves. The Supreme Court of the United States has shown unprecedented alacrity in permitting execution of death row convicts as Trump tries to rush them in his last days in office. A conservative majority on the court suggests that many hard fought civil rights might well be overturned in the days to come.
The Australian High Court (their apex court) invited widespread criticism when it recently overturned the conviction of Cardinal George Pell, who was found guilty of child sex abuse, on a technicality. In another case, it ruled that a non-citizen of aboriginal descent who was illegally in the country could not be deported. [The argument will find parallels in the challenge to the Citizenship Amendment Act in India, where the government is seeking to retrospectively legalise the presence of non-Muslims who have illegally entered into and continue to stay in India. In both cases, the criticism is that the constitution does not permit giving such a favour to only certain classes among equally placed people].
The difference, then, is not that the Supreme Court is controversial in its judgments, as much as the cases it chooses to hear, and the way it goes about hearing those. This has been repeated in just about every opinion piece about Supreme Court inaction, but it cannot be said enough – the Supreme Court has still not heard the constitutionality of the near-martial law state that Kashmir has been locked in for the last 16 months as well as several other cases of constitutional importance with grave effect on fundamental rights.
Prestige in decline
India’s reputation as a justice system to be emulated is taking a hit, consequently. India is ranked 69 in the World Justice Project’s Rule of Law index 2020 (out of 128 countries) – wedged between Belarus and Burkina Faso, both practically dictatorships.
In a study analysing judgments by apex courts of 43 countries between 2009 and 2019, lawyer Mitali Gupta concluded that there has been a clear fall in the number of times international judges cite Indian Supreme Court judgments in their writings – an indication of the declining prestige of the Supreme Court of India.
What does not get reflected in rankings and citations is its goodwill among citizens, a commodity that the Supreme Court enjoyed abundantly in decades past. That is eroding. Perhaps a time will come when the court is forced to reckon with the old classic line “you don't know what you've got ‘til it's gone”. Will it be too late?
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