Soaring Highs, Depressing Lows

As the Supreme Court gets set to reconvene tomorrow, we take a look at the hits and misses of the last session.

The Supreme Court’s 2nd session was from July 3 to September 22. During this session, the Court heard a few significant bench constitution bench matters – the Triple Talaq case (Shayara Bano v UoI), Privacy Case (Puttaswamy v UoI) and the WhatsApp Privacy Case (Karmanya Sareen v UOI) among others. While the court delivered landmark rulings in Shayara Bano and Puttaswamy, it continued hearings in the Cow Vigilantism (Tehseen Poonawalla v UoI) and WhatsApp Privacy case. This session also saw commencement of hearings in the Rohingya Deportation case (Salimullah v UoI) and Hadiya Love Jihad case (Shafin Jahan v Ashokan). The highpoints of this session were the verdicts in the five-judge Triple Talaq case and the nine-judge bench Privacy Case. While the instant triple talaq practice was held as invalid by a narrow division of 3:2, the court in Puttaswamy spoke unanimously to recognise the Right to Privacy as a fundamental right.

Means vs Ends: What makes a landmark precedent?

The tendency of consecrating the Court for its outcomes should be checked. The invalidation of triple talaq and recognition of privacy as a fundamental right in 21st century, though most welcome, were low-hanging fruits and can hardly be described as brave or path-breaking. The Supreme Court’s legitimacy should rest on the rigor and quality of reasoning employed towards these outcomes. Locating legitimacy in outcomes alone is dangerous. It is after all the reasoning that constitutes the precedent in law, and a growing obsession with ends will weaken the rule of law and the authority of reason in the long run.

The invalidation of triple talaq was largely expected, but the bench reached it through confused, constricted and cagy reasoning. The infirmities of judicial rigour manifested in three ways: By choosing to dodge the ghost of Narsau Appa Mali, the constitution bench failed in its foremost duty of clearing cobwebs and consolidating precedent; second, this turned out to be yet another instance of the Court reaching, as Pratap Bhanu Mehta put it, the “right conclusions without consensus on first principles.” Was the Triple Talaq struck down on for its incoherence with equality or Islam or something else? What is the core of the idea of arbitrariness employed by Justice Nariman, and hasn’t it been arbitrarily applied itself over the last three decades? Can it stand on its own at all, without the support of the reasonable classification doctrine? What will be the superintending authority of the constitution over uncodified religious customs?

These are open questions. The confusions and mysteries they harboured within them stay intact after the keenly followed and highly charged courtroom drama. It bears reminding here that the bench did not declare triple talaq unconstitutional, but merely invalidated it for a loose coalition of reasons that are struggling to fit together. Finally, the dissenting opinions deepened doubts about the fate of individual freedom in a constitutional republic when choked by the clutches of group identity. For these reasons, the judgment makes little jurisprudential progress and at the end, its political value will far outweigh its precedential weight.

Following closely in its heels, the privacy judgment appears to be a radical act of redemption. The judgment takes the duty of public reasoning expected of the highest court seriously. Its chief achievement lay not in recognising privacy as a right but in giving content to it by explaining the contours of privacy and identifying its roots in ‘dignity’ and not ‘the right to be let alone’. This marks a much-needed departure from the Court’s tradition of gifting us ‘empty vessels’, wherein judges recognise the right without giving it meaning or enforceability.

The right to privacy is recognised as a necessary concomitant of dignity under Article 21, its various manifestations and extensions in our personal and public lives are explored and the core structured in a stable and reasonable manner. One can glimpse the logic of coherentism pervade through all the individual opinions and it is a step towards making the Court more accountable. For thundering that privacy matters but more importantly for telling us what it is and why it matters so much, the nine bench unanimous decision in Puttaswamy could be described as the high noon of the Supreme Court in the new millennium.

Between High Principle and Adhocism? Profiling a Capricious Court

In the wake of these landmark rulings, the public legitimacy of courts has risen, the Supreme Court’s reputation as chief protector of civil liberties has beenbolstered, but the blaze of its finest hour should not blind us to some major lapses. A closer scrutiny of commissions and omissions by the Court paints an anxious picture. The judiciary has definitely enunciated broad principles, but has been selective and even whimsical in applying them to concrete situations as evidenced in the Hadiya case and the Gujarat Shrine compensation case.

Justice DY Chandrachud, the head priest of Puttaswamy, who eloquently described dignity to be the justification for privacy, seemed to forget his own mantra in the Hadiya Love Jihad Case. Trampling upon all notions of individual liberty and personal agency of a woman, the Court ordered NIA investigation into an inter-faith marriage, inviting charges of infantilising Hadiya and politicising the judiciary. In one stroke, the ‘counter-majoritarian’ Court ended up empowering imaginations and vocabularies of majoritarianism in India.

In the Gujarat Shrine Case (Gujarat v IRCG), decided days after the privacy judgment, the SC ruled that State compensation for the reconstruction and repair of shrines destroyed during communal frenzy violates the inviolable idea of secularism. This when SC judgments have approved state support and funding for religious events and festivals in the past. The Court would have us believe that Article 27 that prohibits taxes from being used to promote or maintain any religion will be disrespected. Is making good the loss incurred to a religious denomination by the State’s ineptness a promotion of any religion? Or is it just compensation simplictor? What is the state’s relationship with religion in India? What are the features of Indian secularism? None of these questions were even engaged by the Court but it was so firm in its view about the unconstitutionality of such compensation that it overruled a well-considered High Court order. Such absentmindedness and formalism in defining even key constitutional concepts underlines the incoherence and inconsistency in court’s reasoning. This judgment is rightly being criticised for getting the conceptual core of secularism wrong.

In September, the Court began hearing in two matters that could test its capacity to counterbalance a strong political executive and preserve its standing as a counter-majoritarian institution. The Cow-Vigilantism Case will scrutinise the state support for cow vigilantes and legal basis of impunity encoded in cow-protection legislations, whereas the Rohingya Deportation case will see a challenge to the government’s refugee deportation policy.

On a slightly different note, the Court will be led for the next thirteen months by a Chief Justice who has a reputation for being severely uncomfortable and circumspect about free speech in Indian democracy. Chief Justice Dipak Mishra’s reservations with the idea of expressing ourselves freely has added more restrictions on free speech in the last one year than those brought by the legislature in the last two decades. It is Justice Dipak Mishra’s legacy that speech can now be restricted for criticising “historically respected figures” as seen in the Devidas Ramchandra Tuljapurkar case, right to reputation has trumped free speech in the Subramanium Swamy case, and we are all patriots by standing up for national anthem in the unforgettable Shyam Chouksy case. Justice Dipak Mishra’s preoccupation with free speech can only intensify in the coming months, given his powers to constitute and head many benches. The fate of free speech hangs in the balance.

Chinks in the Judicial Armour: Cluttered and Incomplete Reasoning

The record of the Court in the last session was a mixed one. It was defined by soaring highs and depressing lows and while its role as a counter-majoritarian and civil libertarian institution must be acknowledged, a mirror must also be held to the follies of its jurisprudence and its institutional weaknesses. The allegation that Indian Supreme Court lacks rigor and consistency is picking up wind every day. The Court must take this charge seriously if it does not want its authority to be undermined. It will have to come to terms with the fact that judicial authority rests primarily on the quality of judgments. And the quality has more to do with reasoning than the outcomes.

What travels as precedent in the legal complex are the reasons for legal actions, not the actions themselves. The Supreme Court has to take this duty to give reasons for its decisions most seriously and urgently. The journey of the Basic Structure Doctrine has shown us that poor reasoning and failure to feed content to values can lead to disastrous results. The Court has never shied away from identifying basic features of the Indian Constitution, but has consistently failed to theorise values like secularism or judicial independence or democracy meaningfully in advance. Its engagement with these ideas has been ad hoc, incomplete and mercurial.

The Supreme Court’s failure to meet these benchmarks has, in the long run, lowered the bar of Indian politics. This is for the simple reason that government and its policies often have to meet or overcome the standards set by the judiciary in the previous cases. Given the Supreme Court’s vast engagement with policy issues of the day, the quality of public debate on them are structured and affected by judicial narratives in no small measure. The Supreme Court, as it moves forward, must be conscious of the twin burdens of justification and shaping public culture.

However, the duty of public reasoning and justification should not be limited to judgments alone but also expanded to administrative decisions taken by the Supreme Court, both for itself and for the higher and lower judiciary. Whether judiciary is truly independent or not can no longer be settled merely by discussions over appointment or transfer, or debates over jurisprudence. There is a vast array of decisions taken by the judges and most notably, the Chief Justice, that remains outside public scrutiny and yet shapes the state-judiciary relationship in crucial ways. The constitution and composition of benches, the listing of matters, the scheduling of hearings as well as acceptance of post-retirement appointments are all sites where struggles for judicial independence and public reason must be waged. These dark alleys of Court pose a far greater and under-studied risk to judicial independence and rule of law than is conventionally assumed.

As Gautam Bhatia has argued, their reluctance to form a bench for demonetisation  or Aadhaar had the indirect effect of deciding a matter in the favour of government without deciding it directly. It is hoped that the judiciary would do well to remember its own doctrine of colourable purposes when it matters in the coming term. It must also remind itself, time and again, that its institutional commitment is to the idea of constitutional morality, and not political or religious morality. What constitutional morality demands is a question that should engage the honourable justices of the Supreme Court at all times.

About the author

Satya Prasoon

Satya Prasoon is a lawyer based at Centre for Law and Policy Research, Bangalore where he is associated with the Supreme Court Observer Project (scobserver@clpr.org.in). This Project tries to make Supreme Court’s work more accessible for a larger community beyond lawyers and researchers. Satya is interested in the broader realm of public law with constitutional law as its focus.