ICLP Turns 7 || A Constitutionalism Without the Court

The Indian Constitutional Law and Philosophy blog turns seven years old today.

As always, I want to use this opportunity to reflect upon some of the events of the preceding year. In November 2019, upon the retirement of the previous Chief Justice, I had written that the Supreme Court was well on its way to becoming an “executive Court”. With its opaque functioning, its use of sealed covers, its frequent and uneven “staying” of High Court judgments, and its evasion of constitutional issues (among other things), it was turning into an institution that “speaks the language of the executive, and has become indistinguishable from the executive.” There is little doubt in my mind that in the eight months after November, the collapse into the “executive Court” has intensified (for example, see here). I would also, submit, however, that this has been accompanied by something more: the Court (in its judgments and orders), far from failing to act as a check on a unbridled executive power, has become a facilitator of it. In other words, the judgments and orders of the Court have had the effect of entrenching executive power by either providing it with formal judicial imprimatur, or by the Court agreeing to take the case, but failing to exercise any meaningful form of judicial review (thus providing a deemed imprimatur – or indirect validity – to the executive’s actions). 

This is visible, for example, in the multiple rounds of litigation around internet restrictions in Kashmir, where the Court (a) first, after a month-and-a-half of delay, passed an “advisory” interim order requesting the government to “make endeavours” to restore normalcy, rather than adjudicate upon the constitutionality of the internet restrictions; (b) secondly, after five months of delay, handed down a “judgment” that laid down standards of judicial review, but refused to apply them to the government’s actions, (c) thirdly, five more months later, asked the government to adjudicate upon the validity of its own actions, rather than pass a judgment on merits, and (d) finally, has yet to rule on a contempt action against the government for violating even the orders mentioned in (c) (indeed, in an increasingly common occurrence, the Court agreed to the government’s request to adjourn the case to after August 5, which is the one-year anniversary of the internet restrictions. What that has to do with the constitutionality of State action is best left to the reader to decide). 

Every step of this year-long saga has seen one or more of the following: a delay in deciding a continuing violation of rights, a “decision” that states the law but does not apply it (and thus allows the violation of rights to continue without actual judicial scrutiny), or a decision that outsources the issue back to the executive, for it to be a judge in its own cause. 

It is therefore clear that the actions of the Supreme Court over the last one year raise some serious questions about whether and to what extent it can be called a “constitutional court” at this point of time – and, correspondingly, about the responsibility of legal writers, as participants in the system, when they write about the Court (or choose not to). In this post, I will examine some of these issues. 

Habeas Corpus and Freedom

This blog has never subscribed to the comforting fiction that adjudication is a neutral or apolitical enterprise. As critical legal studies has long taught us – and as daily experience in the courtroom teaches us – ideology is embedded in law, and shapes adjudication. But in acknowledging that, it remains equally important to insist that law is not politics, that the Court performs a vital democratic function that is distinct from partisan political action, and when that distinction is erased, it represents the decay of the Court as a democratic institution.

What does this mean in practice? It means, for example, that there may be legitimately different views on the correct outcome in the Sabarimala case. Judges may reasonably come to different conclusions about the constitutionality of altering Article 370 of the Constitution. If we disagree with those judgments, we critique their legal reasoning. Perhaps, in a future day, the critique may gain acceptance. That is how the system works. But there are some fundamentals about the judicial function, and about the function of law in a constitutional democracy, that are beyond cavil. Good faith interlocutors do not “disagree” about these basic axioms. To act according to them is what it means to be a constitutional court in a constitutional democracy. An institution that flouts them is no longer recognisable as one. 

This is why I want to begin with the writ of habeas corpus: the most elemental of all legal remedies, the heart and soul of a democratic legal system. Habeas corpus protects the individual against the naked exercise of executive power. It is a shield against illegal detention. It authorises the Court to command that a detained person be brought before it, and to inquire into the legality of their detention. Habeas corpus is that “last law” marking the barrier between a democratic and an authoritarian polity. A State in which the government can arbitrarily lock up people has a very poor claim to democratic credentials.

It is now a well-known fact that in the aftermath of the alteration of Jammu & Kashmir’s special status, almost exactly one year ago, a very large number of individuals were placed in detention. Some of these detentions were challenged in habeas corpus proceedings. One such case was that of Yusuf Tarigami, a J&K MLA. In November, I wrote about what the Supreme Court did in Tarigami’s case. I reprise it here:

Let us take the case of J&K MLA Yusuf Tarigami. His party chief, Sitaram Yechury, filed a habeas corpus for Tarigami to be produced, and his detention explained. After hearing the petition, the ex-Chief Justice “allowed” Yechury to “travel” to J&K to “meet” Tarigami, and then “report back” to the Court – on the condition that he could only travel for this purpose, and could not engage in any “political activities” while there.

Where does one even begin with the extraordinary perversity of all of this? Article 19(1)(d) guarantees to all citizens the freedom of movement within the territory of India. J&K is a part of India (is it not?). Yechury is an Indian citizen (is he not?). There was no Emergency declared in J&K, so Article 19(1)(d) had not been suspended (in fact, the government to this day insists that everything is “normal”). If at all Yechury’s movements could be restricted, it could only be on the basis of a “law” that met the test of reasonableness under Article 19(4). So where on earth did the Supreme Court get the idea that it had any power or authority to “allow” Yechury to travel to J&K, and place “conditions” on what he could or could not do when he was there? Where in the Constitution were these “conditions” sourced from? Was the ex-Chief Justice the head of the Supreme Court or the head of the Supreme Internal Visa Issuing Authority of India? And what happened to the right to habeas corpus? Had it been erased from Article 21 by this newly-minted Supreme Internal Visa Issuing Authority of India? As A.G. Noorani would point out a few weeks later, “the Gogoi court has, at reckless speed, run a coach and four through the centuries-old established law on habeas corpus.”

Indeed, not only did the Supreme Court “run a coach and four” through habeas corpus,  not only did it abuse a habeas corpus proceeding to invent an entirely new set of constitutional restrictions, but it openly mocked that “great and celebrated writ” (and in the process, mocked itself). In a petition filed by Iltija Mufti asking that her freedom of movement be protected, the Supreme Court asked her counsel: “why do you want to move around? It is very cold in Srinagar?” To use a word that has become popular in judicial parlance lately, the Court visibly and openly demonstrated its “contempt” for habeas corpus, and for the rights guaranteed under the Constitution that it was enjoined to protect.

This was not a one-off incident. In the one year since the alteration of Article 370, the Supreme Court is yet to actually decide upon the legal validity of any of the detentions challenged before it. The most recent exhibition of this phenomenon involved the detention of Saifuddin Soz. The detention of Saifuddin Soz was challenged before the Supreme Court on 8 June, 2020. Now, in the first mockery of habeas corpus, the Court issued notice in the case and adjourned it by four weeks. In effect, therefore, the Court was telling the world, “it doesn’t matter if a man has been illegally detained, the detention can continue for another month before its validity will be tested.” Contrast this with what Alfred Denning wrote about what the habeas corpus was meant to be:

Let me start with an instance of how the courts approach the subject. Whenever one of the King’s judges takes his seat, there is one application which by long tradition has priority over all others. Counsel has but to say ‘ My Lord, I have an application which concerns the liberty of the subject ‘ and forthwith the judge will put all other matters aside and hear it. It may be an application for a writ of habeas corpus, or an application for bail, but, whatever form it takes, it is heard first.

So it goes. Let us now come to the actual hearing, at the end of July, which was a cross between a tragedy and a farce. At the hearing, the government insisted that actually, Soz was not being detained at all. Soz’s lawyer insisted that he was, that there was no formal order of detention, but that he was physically restrained from moving outside his house. What did the Supreme Court do? It simply “accepted” the government’s statement, refused to let Soz’s lawyer argue further, and “disposed” of the case. This led to sordid and surreal scenes that same night, when Soz was heard shouting from behind the locked gate of his house, “let the Supreme Court see how I am being detained.” 

The third story relates to Mehbooba Mufti’s detention, who was detained on the 5th August, 2019 and even as she was in detention, a detention order under the Public Safety Act slapped in February 2020.  The order of detention was based on a dossier prepared by the Senior superintendent of police which the petition described as “manifestly biased, slanderous and libelous against the Detenu and which no reasonable person ought to rely on for depriving a citizen of her fundamental freedoms and person liberty.” Among other things, the dossier had described the detenu who is a former Chief Minister of the State, as “hard headed”, “scheming”, “daddy’s girl”, “Kota Rani” etc.  The Supreme Court issued notice on the petition and was to be heard again on 18th March, 2020.  The Petition however was not listed that day or at any time thereafter. The State did not even file a reply yet to her petition. Since then, Mufti’s detention has been extended by three months twice, now upto November 2020.  The Chief Justice was asked in an interview in April about priority listing of habeas corpus petitions on Kashmir, presumably referring to petitions including Mufti’s. He is reported to have responded: “These and so many other matters are there, I cannot say when they will be heard but we will certainly hear them.  … On Habeas and others, we are conscious of the nature of these petitions and they will be decided.” 

The fourth story is that of Mian Abdul Qayoom, the 76-year old President of the J&K High Court Bar Association. On August 5, Qayoom was detained under the Public Safety Act. Qayoom challenged his detention before the J&K High Court. He pointed out, specifically, that there was no compelling reason for detention under the PSA, as he was already being dealt with under ordinary criminal law (see Rekha v Tamil Nadu). In what was evidently a grossly illegal detention, the two High Court benches engaged in astonishing legal and linguistic contortions to justify it. The first bench, a single judge, cited King Menelaus (arguably, if you’re looking to the Battle of Troy for your moral code, you’re in a very dark place), and the second bench, comprising of two judges, made dark and borderline-incoherent references to Qayoom’s “volcanic ideology”. Now the case came before the Supreme Court. The Court had before it these two judgments that went against every constitutional principle in the book, and had effectively legalised a regime of punishing thought-crimes. What did the Supreme Court do? Instead of quashing these orders, it requested the government to “show grace”, and release Qayoom, especially as the maximum stipulated detention period was coming to a close anyway! The government agreed to show grace, and as part of the negotiations that appeared to follow, it was agreed that Qayoom would not travel to J&K until after August 7, and “not make any public statements”: this, apparently, was the price to be paid for the government “agreeing” to release Qayoom a little earlier than the expiry of his detention.

The Supreme Court’s order makes for disquieting reading. First, the Court notes its appreciation towards the counsel of both parties, which have enabled it to avoid “examin[ing] the legality and validity of the impugned judgments and we leave it at that.” I cannot stress how extraordinary this is: the Supreme Court is literally expressing appreciation at having been spared from doing its actual job, that is, to examine the legality of a man’s year-long detention! Furthermore, as multiple analysts have already pointed out, the effect of this order is that the two High Court judgments remain standing, and now serve as precedent for thousands of other detainees in the jails of Kashmir and beyond.

The Court then expresses its happiness with the government’s “constructive approach” (as if detention and liberty are not matters of constitutional right but governmental largesse), and goes on to note that “the petitioner will abide by the assurance/undertaking given by the learned senior counsel of the petitioner to this Court qua not travelling to the State of Jammu & Kashmir till 7th August, 2020 and not issuing or making any public statements.” As in the Tarigami case, it is needless to say that this is a wholly illegal order: it is well-established that a citizen cannot waive their constitutional rights away in this fashion, and the Court according its imprimatur to this sets a terrible precedent, where detainees face a Hobson’s choice between remaining in detention and watching their detention either being upheld on the basis of their “volcanic ideology” (or not being heard at all), or being released with a vow of silence. 

Finally, the Court goes on to note: “It is time for all wounds to be healed and look to the future within the domain of our country. We are sure that the petitioner will also adopt a more constructive approach to the future and the Government will consider how to bring complete normalcy at the earliest.” 

It is important to note that statements such as “look to the future” – at the very moment at which the alteration of Article 370 is itself under challenge before the Supreme Court – are deeply problematic (more so as Justice Kaul, the author of the order, is also part of the bench hearing the Article 370 challenge). But that apart, what is the Court trying to say here? Recall, once again, that this was a challenge to the detention of Qayoom. Qayoom came to the Court to enforce his fundamental rights under the Constitution. The Court had to only answer a limited question: was his detention legal or illegal? But somehow, somewhere, the Court thought it would be a good idea to start admonishing the petitioner and delivering a moral lecture (for what? for the temerity of challenging his detention before the constitutionally established forum for doing so?) instead of actually considering the legal issues that it exists to adjudicate upon. 

Qayoom’s case, of course, was not a habeas corpus case, although the principle remains the same. And the basic point I want to make is this: habeas corpus is the most basic and fundamental element of a legal system. Whatever else a Court does or does not do, enforcing the writ of habeas corpus is something that it has to do. And thus, a Court that is unable – or unwilling – to enforce the writ of habeas corpus or decide fundamental questions about the legality of detention and individual freedom, functions more as an extension of the executive branch than a “court” in a constitutional democracy. The formal trappings may remain. The reality is something different. 

Enabling Executive Impunity

The fate of the habeas corpus and detention cases in the context of Kashmir are particularly glaring, but they are part of a larger pattern of executive enablement that I have flagged above. This enablement takes the following forms:

  1. Old-fashioned judicial evasion – discussed multiple times on this blog – which has continued over the last one year. Particularly glaring cases include the failure to hear the constitutional challenge to electoral bonds (mentioned below), and the fact that the constitutional challenge to the alteration of Article 370 remains only partially heard, even as irreversible changes to the status quo are made on the ground, under cover of the former state’s “new” status. 
  2. New-fashioned “we have faith” jurisprudence: this speaks to the indirect imprimatur that I flagged at the beginning of the post. The Supreme Court agrees to hear a case challenging executive action, but – without engaging in substantive judicial review – publicly expresses “faith” that the executive is acting correctly. The most glaring example of this, of course, was in the migrants case, where the Solicitor-General’s statement that there were no migrants on the road after the nationwide lockdown was accepted at face-value by the Supreme Court (for a further critique, see here). 
  3. Other forms of enabling: In PUCL vs Union of India, the Supreme Court laid down detailed guidelines on the procedure to be followed in the case of an extra-judicial execution carried out by the police (euphemistically known as “encounter killings). In the two most high-profile “encounter” cases in recent times, however, the Court has acted as if the PUCL Guidelines no longer exist. This assumed a particularly stark form in the notorious Vikas Dubey encounter: the Supreme Court constituted a “committee” to probe the death of Vikas Dubey in police custody, based upon names suggested by the Government of Uttar Pradesh – the very government under whose watch the extra-judicial killing had taken place (a classic example of getting to choose your own judges). In the usual course of things, immediately after this, a “PIL” was filed challenging the composition of the Committee; the PIL was not filed by a member of Dubey’s family (who, it would be logical to assume, are the people most directly concerned with the matter), was taken up with great alacrity by the Court, and dismissed after a single hearing. Readers can make up their own minds about how far any of this conforms to the standards of the rule of law.

In sum, therefore, a survey of the last one year reveals that cases featuring serious challenges to the constitutionality of executive action have met either one or a combination of the following fates: (a) delay and non-hearing; (b) the executive’s statements and/or reports being accepted at face value, with some “praise” or “appreciation” being thrown in, (c) no substantive or reasoned judgment that actually explains how impugned executive action conforms to constitutional standards (in other words, executive impunity). This, I would submit, has resulted in a particularly insidious type of executive impunity, because while in formal terms, the Court continues to exist, and act (by issuing notice, having hearings, etc.), in actual and effective terms, judicial review stands effaced. This, in turn, provides further legitimacy to executive action (as it is now deemed to have gone through the judicial process), without it ever having undergone genuine judicial scrutiny (I have previously referred to this as a “judicial emergency”). Unsurprisingly, the rise of ambush PILs – where, soon after a controversial event, a PIL is filed in the Supreme Court by a person who has no actual connection with the case (and is often a “serial PIL-filer), and invites its own dismissal because of its shoddy and half-baked character – has been a major contributory factor to this situation. 

The Absence of Legal Reasons

While the destruction of habeas corpus and the enablement of Executive impunity are, in my view, the most serious developments of the last one year, there are a few other issues I want to draw attention to. These do not directly involve the blurring of judicial and executive functions discussed above, but they do speak to other ways in which the Supreme Court continues to decline as a judicial institution. 

Let us start with the Jagannath Yatra case. On 7th May 2020, the Odisha government issued a set of instructions with respect to the construction of chariots for the annual Jagannath Yatra, in view of the Covid-19 situation. The Guidelines stipulated that the final decision on the holding of the Yatra – given Covid-19 – would be taken at a later date. As the Guidelines made clear, therefore, it was the Odisha government’s task to decide whether or not the Yatra would go ahead. However, June wore on, and no decision had been taken. Then, the predictable happened: someone filed a PIL asking for the Yatra to be banned. Note that this PIL did not challenge any government decision, because no decision had yet been taken on the Yatra. What did the Supreme Court do? It thundered that “Lord Jagannath will not forgive us if we allow the Yatra.” And then it asked the Odisha government for suggestions. The counsel for the Odisha government suggested an injunction. The Court accordingly granted it. No reasons were provided (of course). As I wrote at the time, this was a very, very clear case of the government firing from the Court’s shoulders: it is simply incomprehensible why the Court – otherwise so concerned about the separation of powers in recent times – did not ask the government to decide on the Yatra, as it was legally obligated to do, and instead took the call itself

But this is not all: recall and modification applications were filed, and within days, the same Court then made a complete volte face, now allowing the Yatra (with some conditions) (this time, mysteriously, the Odisha government had changed its own stance in a matter of hours). Once again, the public was not given the benefit of legal reasoning: if the Yatra could have been conducted safely, why the original ban? On whose instance was the original ban issued? And on whose instance was it lifted? We do not know any of this, because the Court’s orders read more like firmans than judicial decisions. What we do know, however, is that within hours the Court’s unreasoned flip-flops had become part of a partisan political narrative, where the Jagannath Yatra – and the sentiments of millions of devotees – had been saved by the Prime Minister, intervening to overturn a ban (that the Court had no business issuing in the first place). At this point, the kindest thing that can probably be said is that the Court let itself be duped; beyond that, it is perhaps best for constitutional lawyers to leave the field, and for political scientists to take over. 

But this issue – of unreasoned decrees (often passed without adhering to the most basic principles of natural justice, where people upon whom coercive orders are passed are not even given an effective hearing in Court), unexplained volte-faces within and across judgments (compare, for example, the refusal of referral in Article 370 with the referral in Sabarimala, discussed below), and loose talk in courtrooms – has been a recurring one. For example, an extraordinary volte-face was executed by the Court on the issue of Covid-test pricing: days after declaring that Covid tests would be free, the Court walked back on its order, virtually in its entirety. The issue, no doubt, was a complex one (and triggered a lively debate on this blog); the point is, however, that the Court exempted itself from providing legal reasons for what it was doing, a problem that is exacerbated when it does “A” on Monday, and proceeds to do “not-A” on Friday: in the absence of legal reasons, how is it possible to assess what explains or justifies such behaviour? And indeed, it is quite extraordinary to note that in the four+ months since the Disaster Management Act was invoked and we entered into a new legal world shaped by Covid, with serious implications for fundamental rights, there has not been a single substantive judgment by the Supreme Court on the State’s response to Covid (there has been judicial evasion, though); this, despite a huge range of issues, starting with the invocation of the DMA, various measures under the DMA, the status of the PM-CARES fund, migration, educational issues, 4G internet access in Kashmir, and so on. Much like the Kashmir situation, the Court’s failure to enforce executive accountability, and the flourishing of executive impunity, are two sides of the same coin. 

The Tearing Down of Judicial Constraints

Two specific incidents over the last one year speak to an alarming breakdown of internal processes within the Court, and have serious impacts upon the future of the rule of law. Both incidents have been written about extensively on this blog, and I will only summarise them here. The first pertains to an interpretive dispute around the Land Acquisition Act. As is well-known, from 2014-onwards, the numerous benches of the Supreme Court had interpreted Section 24 of the Land Acquisition Act in a particular manner (let us call it “Interpretation A”). This interpretation had been followed in thousands of High Courts across the country, and was as “settled” as any legal position can be. 

In 2019, this interpretation was overturned. The manner in which it was done, however, is profoundly alarming. First, Justice Arun Mishra, presiding over a two-judge bench, “doubted” the correctness of Interpretation A, and “referred” it to a three-judge bench. He then headed the three-judge bench that heard the reference. Note that this three-judge bench was bound by the fact that Interpretation A had been laid down by a bench of equal strength (three judges), a few years before. In such a situation, if there was a genuine doubt about whether Interpretation A was sustainable (the threshold for which is quite high), then – at most – the legal question could have been referred to a still-higher bench. But that is not what Justice Mishra did. Over a dissent from Justice Shantanagouder, he declared that the previous decision was “per incuriam” (i.e., had completely ignored an existing law), a legal nullity, and therefore not binding upon him; thus, he exempted himself from the troubling necessity of following precedent, held that the opposite interpretation – Interpretation B – was correct, and immediately began to list and dispose of pending cases in accordance with Interpretation B. Eventually, the-then Chief Justice constituted a five-judge bench – again headed by Justice Mishra – to decide between Interpretation A and Interpretation B. To absolutely nobody’s surprise, Justice Mishra wrote a judgment stating that Justice Mishra’s interpretation had been right all along. As was pointed out at the time, this had huge ramifications on issues of land ownership across the country (for discussion, see here and here).

The second issue pertains to the Sabarimala temple-entry judgment. As everyone knows, the the Supreme Court, by a 4-1 verdict delivered in 2018, had held in favour of the entry of women between the ages of 10 to 50 into the Sabarimala Temple. Review petitions were filed against this judgment. Until 2019, at least, every halfway-competent lawyer knew that the scope of the review was a narrow one: in the interests of finality and stability, a judgment of the Court could be overturned in review only if there was “an error on the face of the record” (in simpler language, an error so blatant that no reasonable person could disagree), or something equivalent. In November 2019, the Supreme Court – on a 3-2 split verdict – referred the review petitions to a “larger bench”. Astonishingly, the Court did not even attempt to demonstrate that the parameters of review had been made out: instead, the alleged basis of its judgment was that there were some other pending cases before the Court involving “similar” issues, which would benefit from an authoritative interpretive decision.

The sheer absurdity of this “reasoning” was pointed out at the time. But what followed was arguably worse (see here and here): despite the fact that the review order did not stay the original judgment (a step too far even for that bench), the Chief Justice refused petitions asking for its implementation, on extremely specious grounds; he then set up a nine-judge bench. The maintainability of the review was, naturally, questioned before the bench. The bench then came up with what can only be described as a piece of judicial reverse-engineering: it held that actually, review powers in writ jurisdiction were unlimited, and not subject to any pesky constraints such as “errors on the face of the record”. But not only was this an entirely novel formulation of review jurisdiction (for criticism, see here), it blew the door wide open: henceforth, it is simply impossible to know when a judgment is final, because a nine-judge bench of the Supreme Court has said that there are no constraints upon review. In effect, anything goes.

The fate of the LAA and Sabarimala cases are important, for the following reason: judicial legitimacy rests upon the fact that judgments of the Court are accorded a degree of finality. We may agree or disagree with a final judgment, but its binding character is not in doubt. For this reason, the legal process also sets out very specific ways in which a judgment can be challenged, modified, or overturned: either the narrow process of review, or a system of referral, where multiple judges of the Court have to be persuaded, first, that precedent was so wrong that it justifies a reconsideration by a higher bench, and then, a full rehearing on merits before a larger bench.

However, the LAA and Sabarimala cases show that when it is inconvenient, these processes can simply be jettisoned, judgments overturned on (what is basically) a whim, and post facto reasoning provided telling us that actually it was all right, all along. It should be evident that precedent cannot work this way, and – ultimately – what this does is to reduce every Court judgment to the specific power relations and factions that exist within the Court at any given time. 

The Institutional Problem

This, indeed, leads me to the next issue: what happened in both the LAA and the Sabarimala cases was, to a large extent, enabled by the fact that the Supreme Court is now a Court with around thirty active judges at any given time, but with immense and unaccountable administrative power concentrated in the hands of a single individual: the Chief Justice. As I have written before, the Chief Justice has absolute power in allocating cases to various benches, deciding when cases will be heard, and so on; and in an institution where the force of precedent is already very weak, where the number of judges is so high, and where judicial ideology exists (as it does in any other court), the administrative power of allocation translates into a substantive power over outcomes, especially in fraught cases. 

A cursory glance at the news reports over the last one year should reveal the multiple problems with the manner in which cases have been allocated at the Supreme Court. The problem is compounded when it comes to listing: the administrative side of the Supreme Court wields tremendous, opaque, and unaccountable power in simply deciding when to list – or not list – a case for hearing. For example, the contempt petition against the government’s failure to comply with the Supreme Court’s order concerning the restoration of 4G internet in Kashmir was filed on the 8th of June, 2020. For a petition that concerned access to the internet for eight million people in the middle of a global pandemic, and literally concerned the fact that the Supreme Court’s own orders were not being followed, it took more than a month for the petition to even be listed for a hearing (during which time, of course, deprivation of 4G internet continued in Kashmir, and still does). In the meantime, the Jagannath Case – discussed above – was listed and heard twice; and a petition filed by Mr. Arnab Goswami seeking protection from arrest was listed overnight on the basis that it concerned “personal liberty” (the irony here is grim and stark).

And the petitioners in the 4G internet case were the lucky ones: as pointed out above, two and a half years and multiple election cycles on, the Supreme Court has consistently refused to hear the constitutional challenge to the electoral bonds case, which allow for limitless and anonymous corporate political funding of political parties. Needless to say, a Court that has otherwise been very prompt in staying the occasional High Court orders that have gone against the executive (especially on bail: see here and here) – a topic that deserves extensive treatment in its own right – has not stayed the electoral bonds scheme, despite the vast amounts of unaccounted money it continues to flush into the electoral system. 

A Constitutionalism Without the Court

In professional wrestling, there is a term called “kayfabe“. Kayfabe is defined as “the portrayal of staged events within the industry as “real” or “true”, specifically the portrayal of competition, rivalries, and relationships between participants as being genuine and not of a staged or predetermined nature of any kind.” A crucial figure in maintaining kayfabe is the pro-wrestling commentator. By “calling” the wrestling match, move by move, the commentator keeps up the suspension of disbelief, and helps the audience to maintain the illusion that a genuine contest is in progress, whose outcome is uncertain. In truth, of course, everyone really knows that the match is staged: the wrestlers, the referee, the commentator(s), and the audience; but the professional wrestling as performance art depends upon everyone acting as if they believe the opposite.

As a lawyer who has been involved in some of the cases discussed above, and as a legal writer, writing about the Court for the last seven years, this last year has been dispiriting. That sense has been compounded by the fact that it is clear as day that in the courtroom, a double-standard is applied: government counsel repeatedly engage in character assassination, crude political rhetoric that goes unchallenged, and are repeatedly allowed to get away with outrageous assertions (both factual and legal) that the Court takes on faith (a similar indulgence is not accorded to petitioners who might indulge in such antics).

The entire experience is one that necessitates some serious consideration about what the role of a legal writer is, in a time like this. Increasingly, if one can see little different between legal writing and ringside commentary at a WWE match (see box), then it is perhaps time to ask: is the enterprise of legal writing worthwhile, or is it now an act of intellectual dishonesty? As Dahlia Lithwick asked the question a while ago (see here), in the context of the confirmation of Brett Kavanaugh:

I’ve been waiting, chiefly in the hope that at some point I would get over it, as I am meant to do for the good of the courts, and the team, and the ineffable someday fifth vote which may occasionally come in exchange for enough bonhomie and good grace. There isn’t a lot of power in my failing to show up to do my job, but there is a teaspoon of power in refusing to normalize that which was simply wrong, and which continues to be wrong. I don’t judge other reporters for continuing to go, and I understand the ways in which justices, judges, law professors, and clerks must operate in a world where this case is closed. Sometimes I tell myself that my new beat is justice, as opposed to the Supreme Court. And my new beat now seems to make it impossible to cover the old one.

But however impossible it feels at the moment, there are three reasons, I believe, that the process remains worthwhile, although it may need to be reshaped. In important and landmark works on the subject, such as The Dual State (dealing with the law in the Third Reich and discussing, among other things, “ordinary courts’ voluntary abdication of their powers of judicial review” (p. lxiv)), Legacies of Law, Politics by Other Means (dealing with apartheid South Africa, including “national security laws” and detentions), lawyers and legal scholars have deliberated upon the role that lawyering and legal writing can play before hostile courts. They correctly point out that whatever the Court may do, and however it may act, it remains important at all times to articulate and defend the rule of law as an independent value, and to record and demonstrate how the actions of the Court fall short in that respect; in other words, there must at all times be an active struggle to preserve the idea of the rule of law, despite – or even because of – what happens in the Courts. 

The second is that while the Supreme Court has come to occupy a disproportionate space in our mental landscape, the fact remains that it is not the only constitutional court in the country. Apart from the fact that the Court itself is a polyvocal institution with multiple judges (although the relevance of that fact is diminished because of the institutional issues discussed above), there exist numerous High Courts, many of whom have, on various occasions over the past year, stood up for the rule of law (see, for example, Karnataka and Allahabad; Bombay; Kerala, Calcutta, and Madras; Madras; Gujarat (until an inexplicable change of bench) and Karnataka; Bombay; Andhra Pradesh). Needless to say, some of these judgments were immediately stayed by the Supreme Court, sometimes ex parte, and almost always without reasons; but it is important to engage with such decisions, and to avoid diminishing their importance.

And thirdly, whatever the Court – or courts – may say or do, it is important to remember at all times that the Constitution is not reducible to the Court. The Constitution remains a critical terrain where entrenched power relations can be challenged, undermined, and democratised, and that process is crucial despite – and in some cases, because of – what happens in the Court. In other words, in today’s day, it is important to retrieve and to build a constitutionalism without the Courts, even as it remains equally important to continue to engage with and in the courts. After all, in the mid-19th century, the American abolitionists argued that a true reading of the Constitution prohibited slavery, even though a pro-slavery Supreme Court had held to the contrary; a few decades later, labour republicans argued that the Constitution’s forced labour clause was a promise of dignity and rights in the workplace – they knew well that a pro-business Supreme Court was never going to accept that interpretation. They made these arguments not because they hoped to “win” in Court, but because the Constitution is so much more than the Court. The verdict of history tells us that they were right.

In recent times, Andras Jakub – a Hungarian constitutional law professor – makes a similar point, in the context of another judicial system facing a similar crisis. Labeling this approach “protect with dignity what you can”, Jakub observes:

You want to teach [ed.: in our case, write] something meaningful, but you are ashamed to teach [ed.: or write] the positive law because you would sound hypocritical and/or simply blind (remember: the rift between constitutional law and constitutional reality is growing every day). Therefore you begin to concentrate on theoretical questions, i.e. you talk more about “the rule of law in general” as a theoretical abstract concept, and you can explain what the telos (abstract purpose) of a key concept is in the sense of a teleological (purposive) interpretation (e.g., in the case of the rule of law: limitation of or fight against the arbitrary use of government power). You can also only include cursory remarks (among them also a few critical ones in an emotionless lawyerly style) about the positive law of your country, but that should not be your main focus—you should rather concentrate on the fundamentals and the ideas behind them.

Or, in the words of Sir Sydney Kentridge (as quoted in The Legacies of Law), we must, at all times, “tell the truth about law.” 

This may require a slightly different framework of analysis: a frame that is more critical, that centres the Supreme Court less, and which focuses more on the Constitution as a site of democracy and power relations (as opposed to something the Supreme Court purports to interpret from time to time). It is, of course, an evolving idea: what it will look like is something we will find out as we go along. But if the coming year is as bleak as the one gone by (and there is every indication that it will be), if we continue to see the continuing collapse of the Court into the executive, it is a task that must be begun urgently. 

I am grateful to my friends and colleagues for reading drafts of this post and reminding me of the things I had missed out. It has truly been a long year.






35 thoughts on “ICLP Turns 7 || A Constitutionalism Without the Court

  1. Finally,Justice Mishra speaking for a ‘welfare state’, after the unplanned lockdown has already devastated millions of poor. Also someone please tell him that Mecca is in Saudi Arabia and there the cases have been declining, and therefore his comparison doesn’t make any sense .-

    “Justice Mishra wondered how States could prevent people from exercising their fundamental right to faith and prayer at public places of worship when the country had opened up or was opening up after the pandemic-induced lockdown.”

    “These [places of worship] are places of importance. This is a matter of faith of the people. Even Mecca has opened in a limited way… Why not allow darshan on a limited basis? At least that is expected of a Welfare State. If it is not a lockdown, how can you prevent people from going there?” Justice Mishra asked senior advocate Salman Khurshid, who led the Jharkhand government side.

  2. Excellent article bold, articulate
    and candid focussing on the growing gulf between theory and reality highlighting the declining constitutional values. Profession and people should come together to uphold Rule of law and preserve constitutionalism

  3. Sir, though I get the appeal of not reducing Constitution to the courts however, I cannot ignore the real ramifications that it might have on our polity. If the terrain of engagement is determined by the power structures, how then can then the disempowered would get their constitutionalism embedded into the constitutional practice? Should we just place our trust in a better future?
    The fight of truth is long and arduous, yet our histories do offer some silver linings. The advent of post-truth through social media does highlight certain challenges to our conceptions of freedom of speech. Is that hope then misplaced?

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