During the Pegasus case hearing, the Supreme Court asked tough questions to the Centre and reserved the matter for interim orders. The Centre’s unwillingness to file a proper affidavit and its bafflement over the question of whether they used Pegasus or not might invite the court’s judicial opinion. A speculation on the outcome is not the intent of this piece. Suffice to say that the case saw an assertive Supreme Court that rose above narrow interests and temporary political constraints. It remained serious about the allegation that national security was used as a ruse for snooping on the citizens and retaining power at any cost.
Apart from the Pegasus case, on and off the Bench, Chief Justice Ramana made certain comments that reflected his sense of constitutionalism. Harish Khare, in a column, said that a “Raman(a) Effect” was evident when the Chief Justice reminded the nation about the tyranny of elected majorities. India has witnessed the perils of such majoritarianism during the Emergency (1975-77). It remains a constitutional alarm bell for the future.
An elected government could turn autocratic and try to annul the Constitution in various ways. It can pass legislations that subvert the Constitution. It can withhold its purse and refuse to heed the requirements of the judiciary, ranging from human resources to infrastructure. It can impose its likes and dislikes upon the judiciary and thereby meddle with judicial appointments, elevations and transfers. It can woo the judges with offers of post-retirement rehabilitations. It can invoke its agencies and draconian laws against the dissenters and try to dismantle the judicial remedies for them.
The quality of democracy is always indicated by the dialectical relation between the political wing and the judicial wing. Even the much-politicised judiciary in the US was unwilling to accept any of the challenges made to the electoral result that ousted the Trump administration. In the UK, the Supreme Court, by way of its Brexit verdict (2019), set aside the prime minister’s move to suspend the Parliament. In Sri Lanka, in 2018, when the then President Sirisena dismissed Prime Minister Ranil Wickremesinghe who enjoyed clear majority in the House and appointed Mahinda Rajapaksa as the PM, it was the Supreme Court that interdicted Rajapaksa from functioning as the premier, because of which Wickremesinghe was reappointed. This was how democracy was saved in the island nation.
These are a few instances where an assertive court could come to the rescue of the Constitution and the people in the republic. But one would not be euphoric about the courts across the world on reading the scholarly article written by David Landau and Rosalind Dixon titled Abusive Judicial Review: Courts Against Democracy. The authors say that “courts around the world, for example, have legitimated antidemocratic laws and practices, banned opposition parties to constrict the electoral sphere, eliminated presidential term limits and repressed opposition-held legislatures”. In this empirical study, the authors explain how the constitutional courts are captured by the executive in different countries. In Venezuela and Hungary, laws were made to control the court, whereas in Bolivia, impeachment was used to tame the judiciary. History shows that in nations like Poland, Nicaragua, Russia and Pakistan, the court has endorsed the mischiefs of the political wing and ceased to be a fine arbiter.
The Indian judiciary is at a crossroads. During the recent years, many cases of constitutional importance were not heard by the top court in time. The plea against laws like the provision on sedition or the Citizenship Amendment Act and pleas challenging electoral bonds and reorganisation of Jammu & Kashmir are pending adjudication. The validity of economic reservation by way of the 103rd constitutional amendment also awaits a decision. Special care needs to be taken to expedite the pleas for release of political prisoners in the country by whatever legal means possible. The Supreme Court needs to act as the first court of liberty, the Constitution’s essential promise.
The Chief Justice can do a lot in bringing in reforms in the system as demonstrated by Willy Mutunga, former Chief Justice of Kenya, who activated ombudspersons to connect the court with the people. Chief Justice Ramana can perpetuate the online hearing system now evolved in the Supreme Court and ensure access to justice for the people of this vast country. The inauguration of virtual courts is perhaps the most significant transformation that has taken place in the Indian judicial system recently. As Justice D Y Chandrachud recently said, a change in the mindset among lawyers and judges is necessary to achieve the goal of paperless courts.
There is great potential for enhancing the quality of the judicial system. Some suggestions include better judicial management, prioritising hearing matters of imprisonment and deprivation of liberty, effective e-filing, speedy disposal of cases, female and minority representation among judges, and the expansion of virtual courts. Establishing regional Benches of the Supreme Court in different parts of the country will go a long way in reducing pendency and improving judicial productivity. Dismantling the hierarchy between designated senior lawyers and others is also crucial to maintain a homogenous lawyer fraternity. Legal plutocracy in all its forms should be discouraged and fair advocacy encouraged. The crucial aspect, however, is to retain the independence of the judiciary and embrace its role as an effective and powerful counter-majoritarian institution in a democracy.
Kaleeswaram Raj
Lawyer, Supreme Court of India
(kaleeswaramraj@gmail.com, Tweets @KaleeswaramR)