An Injudicious Judicial Opinion

In a constitutional democracy, there is a certain baseline expectation that citizens have from their courts. This expectation is that a judge hearing a challenge to the actions of a State organ shall confine themselves to analysing the substance of the claim, and provide transparent and public reasoning to back up their decision, or any other observations that they have to make about the case.

Paragraph 5 of Justice Dipankar Datta’s concurring opinion in the Supreme Court’s 26th April judgment on the question of electronic voting machines [EVMs] and VVPAT verification (Association for Democratic Reforms vs Election Commission of India) proceeds as follows:

It is of immediate relevance to note that in recent years, a trend has been fast developing of certain vested interest groups endeavouring to undermine the achievements and accomplishments of the nation, earned through the hard work and dedication of its sincere workforce. There seems to be a concerted effort to discredit, diminish, and weaken the progress of this great nation on every possible frontier. Any such effort, or rather attempt, has to be nipped in the bud. No Constitutional court, far less this Court, would allow such attempt to succeed as long as it (the court) has a say in the matter. I have serious doubt as regards the bona fides of the petitioning association when it seeks a reversion to the old order.

There are two things to note about this paragraph.

First, the judge levels a range of allegations in the first two sentences, but provides no evidence or particulars. He does not identify who these “vested interest groups” are. He does not specify what “the achievements and accomplishments of the nation” are, which are being “undermined” by these unnamed “vested interest groups.” He does not clarify what the “concerted effort” is that is being made by (presumably) the same unnamed “vested interest groups.” He does not explain what “progress of this great nation” is being weakened, and how, and by whom.

There is a term for such language, and it is called a “dog-whistle.” We are all familiar with dog-whistles: especially dog-whistles that allege that a nation’s progress is being held back by unnamed fifth-columnists. We are familiar with dog-whistles that set these unnamed fifth-columnists against the “true and pure” citizenry, the honest labourers and the “sincere work-force.” We are also familiar with what such dog-whistles lead to. Throughout history, these dog-whistles have been the preserve of demagogues and soap-box orators, seeking to whip up public resentment against the chosen targets of their outrage.

The demagogue does not need to spell out whom he is criticising, what he is criticising, or to provide reasons for his criticism. In fact, were he to do so, his demagoguery would lose its force, because his appeal is not to his audience’s reasoning faculties, but to the worst of their prejudices. His success is measured on no metric other than how much passion he can whip up, and what destructive effects he can direct it towards.

But there is a problem when a court engages in judicial demagoguery. The entire purpose of a constitutional court is to resolve disputes through the exercise of public reason, which is open and honest about its priors, and transparent about its assumptions. When a court begins to engage in these nudge-nudge-wink-wink games before a national audience, it abandons its role and functions as a court.

This is not to say that judicial demagoguery has no precedent in history. Perhaps its most famous exponent was Andrey Vyshinsky, the Soviet prosecutor-judge who presided over Stalin’s show-trials, and publicly berated the accused for being fifth-columnists who were intent on undermining the historical progress being made by the great Soviet nation. Is this an example the Supreme Court thinks worthy of emulation? One hopes not.

The second issue in this paragraph is the judge’s gratuitous personal attack upon the petitioner, the Association for Democratic Reforms. I will not here write a screed defending the ADR: their two-and-a-half-decades’ worth of work is in the public domain, it speaks for itself, and they do not need anyone to speak on their behalf. Notice, however, how – much like the first part of the paragraph – the judge provides no evidence for doubting ADR’s bona fides; in fact, the only reason for that, that comes out of the judgment, seems to be the judge’s outrage at the suggestion of replacing EVMs with paper ballots. But it is the opposite of judicial temperament to let one’s distaste for an argument spill over into a distaste for the petitioner.

Moreover, there is something particularly problematic about a personal attack by a judge upon a petitioner that appears in a judicial opinion, especially when these allegations are not put to the petitioner, and the petitioner is given no chance of defending themselves. This is, of course, not the first time that this has happened in recent years; for other examples of what I have referred to as the Court’s “Idi Amin jurisprudence,” see here. If a judge is intent upon castigating petitioners for the temerity of bringing a case to Court, and the basic principles of fairness demand that personal allegations be put to them, and their response to those allegations be recorded in the judgment. Without doing that, such attacks on petitioners are essentially the judicial versions of “shoot-and-scoot.”

There is a deeper irony here. The law of contempt exists – and rightly so – to protect judges from personal accusations (of bias, or dishonesty, or deciding cases for extraneous reasons). This is why losing parties to a case, or those who disagree with the outcome of a case, are not supposed to attribute the outcome to judicial malice. If judicial criticism became a free-for-all, judging would become a much more difficult and forbidding enterprise than it already is. But the law of contempt – which demands a certain temperance from the critics of the court – is not a one-way street. If judges treat petitioners as fair game for personal attacks, then the only effect of this will be to fray the threads that hold together the existing bargain. One wishes, of course, that this never comes to pass.

The Supreme Court’s EVM-VVPAT judgment will have its critics and its supporters. That is not the point here. Regardless of the Court’s findings, it is respectfully submitted that paragraph 5 of the concurring opinion delivered by Justice Dipankar Datta is both gratuitous and unnecessary. A healthy constitutional culture depends on individuals being able to challenge State action without fear of reprisal. If the Supreme Court itself becomes an organ of reprisal, then soon we will have no constitutional culture, but – to invoke another memorable judicial turn of phrase – “the unanimity of the graveyard.”

Notes from a Foreign Field: The Abolition of the Master of the Roster in Pakistan [Guest Post]

[This is a guest post by Shashank Pandey.]

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In a landmark judgement, the Supreme Court of Pakistan recently took a significant step towards judicial transparency and accountability by abolishing the controversial practice of the “Master of the Roster” by upholding the Supreme Court (Practice and Procedure) Act, 2023 (‘Act’). This move, which marks a departure from the traditional method of case allocation, has sparked debates about the efficacy of such reforms in fostering a fair and impartial judicial system. As India grapples with its own challenges in the realm of judicial administration, the question arises: Should India take note of Pakistan’s bold move and consider similar reforms? This essay explores the implications of the Pakistan Supreme Court’s decision and the potential lessons that India could draw from its neighbour’s efforts to reform its judicial practices.

Features of the Act

The Act has been enacted to regulate certain practices and procedures of the Supreme Court of Pakistan. The preamble emphasises the constitutional mandate, particularly under Article 191 of the Constitution of Pakistan, which allows the Supreme Court to establish rules governing its practice and procedure. Acknowledging the constitutional principles of the right to a fair trial, due process, and the right of appeal, the Act aligns with Article 10A and other relevant constitutional provisions.

The key provisions of the Act include, among others, the constitution of Benches under section 2, outlining that every cause, appeal, or matter before the Supreme Court shall be heard and disposed of by a Bench formed by a Committee comprising the Chief Justice of Pakistan and the two next most senior Judges. The Act specifies the procedure for the Committee’s functioning, including the constitution of Benches. Furthermore, regarding the exercise of original jurisdiction under Article 184(3) of the Constitution, the Act mandates that matters be placed before the Committee for examination under section 3. If the Committee deems it involves a question of public importance related to the enforcement of Fundamental Rights, it shall constitute a Bench of not less than three Judges for adjudication.

What did the Court say?

The judgment begins by highlighting the absence of any unconstitutional, illegal, or objectionable elements upon a plain reading of the Act’s provisions. The judgment then delves into an examination of the constitutional scheme regarding the judicature and its jurisdiction. Furthermore, it explores the petitioner’s argument asserting that the independence of the judiciary was under imminent threat, and the constitutional structure, particularly the Chief Justice’s role as the “Master of the Roster,” would become obsolete with the enactment of the Act.

The court emphasises that the Constitution establishes the Judicature and specifies the jurisdictions of the Supreme Court, including original, appellate, advisory, transfer, review, and contempt jurisdictions. It emphasises the responsibility of the Judiciary to decide cases in accordance with the Constitution and the law, ensuring due process and a fair trial. The judgement clarifies that the Chief Justice’s powers are not unilateral, and the term “Master of the Roster” is not explicitly mentioned in the Constitution, law, or rules. Also, the judgment criticises the use of the term “Master,” deeming it offensive in a constitutional democracy. It argues that the concentration of power in an individual can lead to disastrous consequences, causing irreparable damage to the Judiciary and eroding public trust. The discussion references Islamic principles, emphasising equality and the prohibition of servitude, which contradicts the notion of a “Master.”

The judgment rejects the argument that discarding the “Master of the Roster” concept would negate stare decisis, stating that decisions of the Supreme Court are binding, but not on the Supreme Court itself. It also challenges the idea that the Chief Justice has the authority to decide cases arbitrarily. The judgment further explains that the concept of legal conventions is not judicially enforceable in the United Kingdom itself, from where most of the legal conventions have been inculcated, and the judgment argues that the Constitution in Pakistan does not recognise conventions as having the force of law.

Persistent Issues with the Convention in India

First, the Master of the Roster system has long been criticised for lacking transparency, as the process of case allocation is often seen as arbitrary and not well-documented. A recent example can be the recall of the Ritu Chhabaria judgement. In the two-judge bench Supreme Court judgement of Ritu Chhabaria vs Union of India, which declared statutory bail as a fundamental right, the State, displeased with the court judgment, sought to have it recalled by invoking the Chief Justice’s administrative powers, bypassing regular procedures. The Chief Justice used administrative powers to form a three-judge bench to reconsider the judgment without following the usual judicial process. This action bypassed the need for a reasoned judgment by another bench opposing the original decision. Additionally, a subsequent condition stated that other courts cannot entertain similar bail applications until this three-judge bench reviews the case. This decision seems to overextend the Chief Justice’s powers, creating a hierarchical structure within the Supreme Court. It also opens an avenue for the State to bypass unfavourable judgements by invoking the Chief Justice’s powers.

Secondly, the concentration of power in the hands of the Chief Justice could undermine the principles of the Indian Constitution and natural justice. A glaring example of this situation is illustrated by the episode involving former Chief Justice Ranjan Gogoi. “Nemo judex in causa sua” is a Latin legal principle that translates to “No one should be a judge in his own cause.” This principle reflects the fundamental concept of natural justice and the right to a fair trial. It means that a person or entity should not preside over a case in which they have a personal interest, as it may compromise their impartiality and fairness. This principle is a cornerstone of judicial ethics and is designed to ensure the integrity of legal proceedings. Despite this, Chief Justice Gogoi, facing allegations of sexual harassment, opted for a special hearing, actively participating as a member of the bench, which seemingly contradicted the essence of the principle.

In another case of Campaign for Judicial Accountability and Reforms v Union of India, a two-judge Bench of the Supreme Court, comprising Justices A.K. Sikri and Ashok Bhushan, passed an order referring a matter to the Chief Justice for appropriate listing orders. The Chief Justice then constituted a Constitution Bench to address the issue. During the proceedings, arguments were presented citing the Chief Justice’s administrative powers, specifically his role as the “master of the roster.” Referring to legal precedents and the Constitution, the Bench asserted that the Chief Justice has the sole prerogative to constitute benches and allocate cases. The order emphasized that no two or three-judge Bench can self-allocate a matter or direct the composition of a Bench, and any such order would be ineffective and not binding on the Chief Justice. The order concluded that any order contrary to these principles should be treated as ineffective, and the present writ petition would be listed before the appropriate Bench as allocated by the Chief Justice after two weeks. However, the Chief Justice was himself allegedly implicated in the case, raising questions of partiality and violation of principles of natural justice.

Thirdly, the Master of the Roster system has the potential to create a perception of bias in the appointment of judges for specific cases. In the Indian context, this involves control or influence over the selection of judges or benches for specific cases, which implicates the fairness of the judicial process. Allegations of bias in judge selection have been a persistent issue, leading to conflicts and protests. Notably, in 2019, four sitting judges of the Supreme Court protested against then Chief Justice Dipak Misra, accusing him of biased case allocation.

The Reforms

The reform implemented by the Pakistani Legislature and subsequently upheld by the Supreme Court of Pakistan is a positive development. While acknowledging that there is no perfect solution to systemic issues, initiating change and making incremental improvements are crucial pursuits for every democracy. The introduction of a collegium-like system for case allocation, though not flawless, represents an advancement from the outdated practice of the Master of the Roster.

The legal convention of Master of the Roster is not a constitutionally enshrined principle in India and has been formalised through judgements of the Apex court, which has upheld this practice time and again. However, legal conventions aren’t binding and could be reversed by the initiative of the legislature or the Supreme Court itself, as was in the case of Pakistan. Furthermore, the objective of the Third Judges Case judgement, which was to make the Chief Justice one among equals and hence remove the hierarchy in the matters of appointment or transfer, should become applicable in the case of allocating cases as well. Moreover, the applicability of the same system to those cases within the original jurisdiction of the Supreme Court is reasonable as well, considering the original jurisdiction of the Supreme Court involves cases of large implications.

While some may raise concerns about the logistical and efficiency aspects of such a system, the potential benefits it offers in enhancing the independence of the judiciary by introducing checks and balances outweigh the drawbacks. Notably, a similar system is already in place in the Indian Supreme Court for the appointment and transfer of judges, making it feasible for the court to adopt a comparable approach to case allocation.

Conclusion

The recent decision by the Supreme Court of Pakistan to abolish the “Master of the Roster” practice and introduce a collegium-like system for case allocation has sparked discussions on potential judicial reforms in India. The move in Pakistan addresses concerns related to transparency, concentration of power, and potential bias in judge selection within the judiciary.

India faces persistent challenges in its judicial administration, with the Master of the Roster system criticised for lacking transparency and concentrating excessive power on the Chief Justice. Instances of case allocation have often raised concerns. The Pakistani reform, though not perfect, offers possible insights. The benefits of enhancing judicial independence and introducing checks and balances through a collegium-like system outweigh the potential drawbacks. India could, thus, consider evaluating and reforming its case allocation practices, building on existing systems for judge appointments and transfers.

Guest Post: Who Judges the Judges? Intellectual Bias as a Ground for Judicial Recusal

[This is a guest post by Anshul Dalmia.]

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The Supreme Court recently, in the case of High Court Bar Association, Allahabad v. State of Uttar Pradesh (‘High Court Bar Association’), reserved its judgment on the question of whether interim stay orders granted could operate only for six months unless specifically extended. The five-judge bench was constituted on 2 December 2023 and comprised of the Chief Justice of India, Justice Abhay S. Oka, Justice J.B.Pardiwala, Justice Pankaj Mithal, and Justice Manoj Misra. This case resulted from an appeal to a three-judge bench in the case of Asian Resurfacing of Road Agency v. Central Bureau of Investigation (‘Asian Resurfacing’) that had answered the above question in affirmative.

Through this blog post, I seek to probe a different dimension of this case. Rather than commenting on the merits, I aim to evaluate the vagaries of the composition of the bench which has been constituted to hear the appeal and the fast-tracked procedure it adopted.

Where There is a Will there is a Way

Prior to the setting-up of the five-judge constitution bench, on 1 December 2023, a three-judge bench comprising of Chief Justice of India, Justice J.B.Pardiwala, and Justice Pankaj Mithal, were confronted with the appeal from the High Court Bar Association case that raised doubts, highlighted several practical problems, and showcased issues that warranted an immediate intervention vis-à-vis the Asian Resurfacing case. The Court in this case expressed reservations about the ratio in the Asian Resurfacing case due to the broad formulations laid down by the earlier bench. The Court acknowledged that an indefinite stay might be the result of an inability on part of the Court to take up the case and an automatic vacation without the application of a judicial mind shall lead to a miscarriage of justice. Since both the benches were of co-ordinate strength, the Court deemed it appropriate to refer it to a larger bench of five judges. In this case, it is thus seen that the Court takes a prima facie view regarding the correctness of the judgment which can be contended to be indicative of the Court’s inclination regarding overturning the judgment.

Surprisingly, on the very same day, another bench comprising of Justice Abhay S. Oka and Justice Pankaj Mithal was hearing a special leave petition in the case of Sukha Devi v. State of Uttar Pradesh, wherein the Court observed that the case was causing a lot of prejudice and they accordingly instructed the counsels to argue on the issue of interpretation of the directions issued in the Asian Resurfacing case. Justice Oka, the senior judge heading the bench, hinted at referring the judgment to a larger bench. He even mulled on alternatives such as providing some opportunity must be given to party to make an application for extension.

Immediately the next day, on 2 December 2023, there was a notice that stated that a constitution bench was set up to hear the criminal appeal in the High Court Bar Association case. On 13 December 2023, the case was heard, the arguments concluded, and the judgment reserved. At this juncture, it become imperative to think about the plethora of cases that have been referred to a five-judge bench for years and have not seen the light of the day. Herein, I do not contend that the other cases should have been heard and preferred rather than this one, and thus this fast-tracking attempt should not be seen as a diatribe against the Court. However, the point that I want to drive home is that if the Supreme Court of India wants to truly hear a case and dispose it, there is nothing stopping it from doing so. Hence, I wonder if this should be an indicator for all the five-judge bench cases that have been put on a back-burner all this time. Is the Supreme Court burdened with cases or is it adopting a convenient excuse for simply not wanting to decide the cases?

Further, it does not come as a shock that all the judges that had expressed a view just a day prior, and who were convinced that the Asian Resurfacing case was either causing a lot of prejudice or leading to a miscarriage of justice, now formed a larger bench to question the efficacy of that very judgment. I examine this issue in detail referring to past precedents seeking to question if such a practice is a ground to demand the recusal of judges.

Reliving the Past

The question of judges who comprise the larger bench when they themselves have referred the matter to a larger bench warrants a discussion of the significant judgment in Indore Development Authority v. Shailendra (‘Indore Development Authority’) dealing with Justice Arun Mishra’s recusal. In an elaborate order, Justice Mishra highlighted several cases wherein the judges in the larger bench comprised of the judges in the smaller referral benches. He further stateed several cases where the judges had taken opposite views of what they had originally held, showcasing the possibility of judges changing their minds while hearing a case. Hence, Justice Mishra refused to recuse on the ground that an intellectual bias highlighted through previous reasoning, judgments and referrals did not reflect a semblance of bias.

It is imperative to highlight that separately, I have argued intellectual pre-dispositions to only contain staunch, rigid and fixated opinions. However, here I seek to widen the conceptual understanding of intellectual biases to include pre-conceived notions and pre-expressed views. Coming to the present case, I believe the observation in the Indore Development Authority that a judge could not be disqualified from holding a previous view or having decided a case in a particular way, must be challenged. The Court there highlighted the presence of a safeguard i.e., the power to be convinced by:

… lawyers (who) have compelled this Court time and again to change its views and to refine the law. This Court is known for not a particular view but for refining the law and that has been done with the help, ability and legal ingenuity of the lawyers to convince this Court with aplomb to correct its view.

I believe that such a safeguard is possible solely in an ideal set-up and denotes an extremely high standard of fairness vis-à-vis the right to a fair trial. Firstly, because in a common law country, courts are likely to follow past precedents and uphold the same observations. A diversion from a precedent is frowned upon. Thus, a shift from a previously held interpretation while doctrinally feasible is not practically easy. Secondly, the institutional polyvocal nature of the Indian Supreme Court makes it difficult for junior judges in a bench to differ from the senior judges whose interpretation is likely to be dominant and upheld. This has been explained in detail here. Lastly, I argue that disqualification is warranted when referral judges are present in larger benches since it is antithetical to the basis of a fair trial. For instance, if there are two modes of interpretation, namely A & B before a judge. The Court in Indore Development Authority stated that the Court is justified in having a pre-determined interpretation, A and it is on the lawyers to convince the judge to adopt, B. Here, the Court rather than discharging the burden of being unbiased, shifts the burden onto lawyers for convincing the Courts to change their opinion, which is a herculean task in itself. I contend that such an observation is not at all fair. Fairness in adjudication would mean, lawyers from both sides convincing the judge to choose either A or B, without any prior predilections.

On the contrary, it can be argued that while every judge comes to court with an open mind, they are affected by their background and professional life. Thus, there always might be judges with predetermined opinions present. In response, I agree that while it might be a logistical nightmare to reject every judge who has expressed an opinion in the past, it would be way easier to disqualify the judges who have referred the judgment to a larger bench, since they definitively have expressed reservations and raised doubts regarding the legitimacy of the judgment. Further, it is imperative to observe that in a balancing exercise, the possibility of all judges at the Supreme Court being disqualified for having adopted an interpretation would be extremely minimal as compared to solely disqualifying the referral judges, as their inclination is extremely certain. Overall, the underlying reason behind demanding recusal is that even the mere appearance of bias should never perpetrate a proceeding. Any case before the Courts must not be tethered in prior opinion or expressed prejudices but rather must be completely free and fair. Such a process will truly satisfy the litigant’s right to a fair trial.

In the current case at hand, it was seen that the three-judge bench headed by the Chief Justice observed the judgment in the Asian Resurfacing case to cause a ‘miscarriage of justice’ whereas the two-judge bench headed by Justice Oka observed the case to cause ‘a lot of prejudice’. It is not surprising what the result would be when a larger bench comprising of exactly all these judges have heard an appeal. Hence, I seek to question whether is this proceeding truly reflective of a fair trial?

The ED Director Judgment – II: The Supreme Court Against the Rule of Law

In my previous analysis of the Supreme Court’s recent judgment involving the tenure extensions granted to the Director of the Enforcement Directorate, I had wondered – somewhat rhetorically – “does the Supreme Court have any respect for itself, and for its own orders?” The context for this was that the Supreme Court had found that the ED Director had been kept in his role, in flagrant breach of the Supreme Court’s own orders, for a period of one year and eight months; but far from visiting any consequences upon the executive, the SC allowed the Director to stay on in his role until the end of July, to facilitate “a smooth transition.”

But in light of fresh events, one must now not only wonder whether the SC has any respect for itself and its own orders, but whether it has respect for the rule of law. In the aftermath of the judgment, the executive filed an application asking for an extension for the ED Director until the end of October, in view of the fact that his input was needed for the global FATF review. Notice the breathtaking audacity here: far from being chastened by a Supreme Court holding that it had breached a direct order not once, but twice (in granting the ED Director two extensions), the executive asked the court to sanction a further extension of a continuing illegality.

One would think that, in a jurisdiction that is formally committed to the rule of law, and to the principle that government is not above the law, such an application would not only be dismissed, but that punitive costs would be imposed upon the executive for wasting judicial time (after all, the judiciary has been quite eager of late to impose costs on petitioners for wasting its time). One would be wrong. After a brief hearing, the Supreme Court sanctioned a further extension to the ED Directors’ tenure “in the public interest”, until the middle of September (half the time the executive had asked for – as if what was happening was a negotiation for a salary increment, and not a serious issue involving the rule of law).

In doing so, the Supreme Court has today sent a signal that in India, there is one entity – and one entity alone – that is entitled to take advantage of its own wrong, not once, not twice, but many times over; and that there is only one entity that can refuse to comply with a Supreme Court order, and not only get away with it, but benefit from it. That entity is the union government. One would be hard-pressed to imagine a more destructive or damaging undermining of the rule of law.

Two consequences follow. One is that today’s order will only further embolden the executive to treat the Constitution and the law as optional. Because not only are there no judicial sanctions for breach, breach is actively incentivised. In such a circumstance, who would not take advantage of the impunity that has been so generously offered? Wouldn’t you?

The second is a more long-term consequence, although as troubling. If the Supreme Court is unable – or unwilling – to enforce its own previous, direct orders (not once, not twice, but many times) in the face of executive recalcitrance, then what hope – if any – ought citizens to have in its ability or willingness to adjudicate cases involving serious and far-reaching constitutional breaches by the executive? Would not such cases and constitutional challenges be effectively turned into a formality, where the outcome is known, and everyone simply goes through the motions? We are aware of jurisdictions where that is the case; and unfortunately, orders such as today’s raise a disquieting sense of proximity. After all, as a senior counsel once told a court – in what seems an eternity ago – “as nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air.”

Idi Amin Jurisprudence

The Ugandan President-Dictator Idi Amin once said, “there is freedom of speech, but I cannot guarantee freedom after speech.”

To put it in less colourful language, Idi Amin was issuing a general warning to the populace: yes, you formally have your constitutional rights, which we cannot formally repeal because it looks bad; but if you try to exercise your rights – as we say in a legal notice – “the costs and consequences will be yours.”

In recent times, the Indian judiciary has been evolving its own version of Idi Amin jurisprudence. Petitioners approach the Court seeking enforcement of fundamental rights against State action. The Court not only holds in favour of the State (this is not particularly surprising), but goes a few miles further, by turning on the petitioners, and trying to make an example out of them for having the temerity to challenge the State in legal proceedings. This was done in the Zakia Jafri case where Khanwilkar J.’s observation that those who’d brought the Article 32 petition to Court “need to be in the dock and proceeded with in accordance with law” was followed by the arrest and incarceration of Teesta Setalvad for two months, before she was given bail (discussed here). It was also done in Himanshu Kumar vs State of Chhatisgarh, where a petition seeking investigation into extra-judicial killings was met with a Rs 5 lakh cost upon the Petitioner (in a judgment authored by Pardiwala J), along with similar observations: indeed, the Court even helpfully suggested to the police what sections of the criminal law might be invoked against the petitioners (criminal conspiracy and section 211 of the IPC) (discussed here).

The latest example of this is yesterday’s judgment of the Karnataka High Court, concerning Twitter’s challenge to the government’s power to block twitter accounts. The challenge was as mainstream a legal and constitutional challenge as it gets: it was questioned whether the government’s blocking powers extended not just to specific tweets but to entire accounts, the absence of due process requirements before blocking, and so on. At the High Court, Krishna Dixit J dismissed Twitter’s case on the basis that hundreds of pages of documents had been filed (?), that “worthier causes of native litigants” suffered while the case was being heard for “days” (??), and that it was “speculative litigation” (???). The learned judge then went on to impose a Rs 50 lakhs cost. Keeping aside the incoherence of each of these three reasons for imposing costs, one can note that Rs 50 lakhs is a drop in the ocean for Twitter. It is a lot more than a drop for individuals who might be thinking of challenging arbitrary State action in court, especially when it comes to blocking accounts and stifling speech online.

What is striking about these cases is that they were not instances of private litigation between individuals, where costs are built in to the common law system. They were all cases of constitutional challenges to State action. Nor were they instances of frivolous litigation that were dismissed at the outset, and costs were imposed as some kind of punishment for wasting the court’s time: in each of these cases, notice was issued (which means, at the very least, a prima facie case founded on some legal or constitutional provision). Arguments were heard in full, and in each of these cases, the Courts had to end up writing 100-page long judgments in order to justify the State’s action. Thus, when one strips away the verbiage, what remains is my observation above: these heavy costs and judicial dog-whistles to law enforcement are nothing more than making examples of people who have chosen to challenge the State in the most lawful manner imaginable: by filing a petition before a constitutional court, and arguing it.

Idi Amin jurisprudence: “there is freedom to come to court, but we cannot guarantee freedom after you’ve come to court.”

In recent times, the Indian judiciary has made many significant contributions to global constitutionalism, such as the doctrine of sealed covers, Humpty Dumpty jurisprudence, and judicial evasion. No doubt, soon enough, Idi Amin jurisprudence will rank among these proud achievements.

Executive Power and the Judicial Service Commission as a Fourth Branch Institution: The Judgment of the Supreme Court of Kenya

Article 171 of the Constitution of Kenya establishes the Judicial Service Commission [“the JSC”]. The JSC is composed of the Chief Justice, a judge of the Supreme Court (elected by the judges of the Supreme Court), a judge of the Court of Appeal (elected by the Court of Appeal), a High Court judge and a magistrate (one woman and one man, elected by the association of judges and magistrates), the Attorney-General, two advocates (one woman and one man, elected by the members of the regulatory body of advocates), a person nominated by the Public Service Commission, and two members of the public (one woman and one man, nominated by the President and confirmed by the National Assembly). As we can see the JSC’s composition includes a range of stakeholders: the judiciary, the bar, the executive (through the A-G), and the legislature (the confirmatory body for the public members).

Judicial appointments and ancillary issues are further regulated by the Judicial Service Act. Section 15(2) of the JSC Act states that where one of the nominating bodies under Article 171 has chosen its nominee, it shall submit the name to the President, and the President, within three days of the receipt of the name, shall appoint the nominee as a member of the JSC. Controversy arose in 2018, when a judge of the Court of Appeal was elected by his peers to be the CoA’s representative in the JSC. However, instead of “appointing” the judge in accordance with Section 15(2) of the JSC Act, the President forwarded his name to the National Assembly for consideration and vetting. The President invoked Article 250(2)(b) of the Constitution, which provides that members of constitutional commissions (of which the JSC is one) would – inter alia – have to be approved by the National Assembly.

The President’s actions were challenged before the High Court. The case was carried to the Court of Appeal, and ultimately to the Supreme Court, which delivered its judgment on 31 March 2023. Over a dissent by Justice Njoki Ndungu, a majority of the Supreme Court held, first, that in accordance with Article 171, the National Assembly had no role to play in the vetting of the elected nominees; and secondly, that insofar as Section 15(2) of the JSC Act granted authority to the President to “appoint” these elected nominees, it was ultra vires Article 171, and void. The majority based its reasoning on the following grounds: first, that while Article 250 made provisions in general for a group “Chapter Fifteen Commissions”, Article 248 made clear that these provisions applied to Commissions “except to the extent that this Constitution provides otherwise.” (paragraph 56) Article 171 – a self-executing provision for JSC appointments – was an instance where the “Constitution provides otherwise.” (paragraph 57) Secondly, that Article 171 itself envisaged different appointment procedures for different types of nominees. When it came to the public member nominees, for example, Article 171 explicitly envisaged a vetting role for the National Assembly. Consequently, where it did not do so – e.g., for the judicial nominees – it was clear that the Constitution did not intend for the National Assembly to play a role. (paragraph 65) And thirdly – and for largely the same reasons – that Article 171 clearly precluded interpolating the President into the process, even if his role was meant to be largely ceremonial (as the Respondents argued).

While the Majority’s reasoning and conclusion rested upon a close reading of the constitutional provisions and of the JSC Act, there are two deeper, unarticulated points that emerge from the judgment, and which are worth thinking about.

The first is the majority’s insistence that the Constitution could not be read to grant to the President (read: the Executive) any more powers than which were expressly set out in the constitutional text. Indeed, an argument that the President’s power flowed from Article 250 read with Article 132(4) of the Constitution – the latter of which authorises the President to “perform any other executive function provided for in this Constitution” – was explicitly rejected by the Majority (paragraph 52). Now, when you think about it, there are two ways in which a Constitution can be interpreted when it comes to the question of power enjoyed by the political executive. The first is to say that the executive power to do “X” exists and is valid unless expressly prohibited by the Constitution. The second is to say that there is no executive power to do X unless expressly authorised for by the Constitution. The question turns upon the normative baseline of the Constitution: as the old chestnut goes, is everything permitted unless prohibited, or is everything prohibited unless permitted (except that here it applies to the executive, and not to individuals).

The majority’s answer is the latter. In some ways, this tracks the Supreme Court’s holding (exactly on this day, one year ago!) in the BBI case, on the question of the President’s power to initiate a “popular initiative” to amend the Constitution. In that case, as well, the majority read a constitutional silence against the power of the President to do “X”, and reasoned that any exercise of executive power would have to be traced back to an enabling constitutional provision. And both in the BBI case as well as in today’s judgment, the underlying sub-text is the lessons of history relating to the imperial Presidency, lessons that tell us that concentration or accretion of power in the Executive – which judicial interpretation can either enable or hinder – often leads to the erosion of democracy.

In fact, this overarching theme leads us to the second point, which is the majority’s application of the principle to the specific case of the JSC. Here, the majority drew upon the lessons of constitutional history to argue that the JSC was always meant to be independent (paragraph 84 – 88), and especially, independent of executive interference (except where an executive role is, of course, expressly provided for). Making the President the “appointing authority” was just such an example of executive interference, especially given that Article 250 was explicit in contexts where the President was the appointing authority for Commissions (paragraph 89). Thus, the majority held that “we believe and hold the firm view that the President can only exercise the functions, whether formal or ceremonial, donated to him by the Constitution. The President has no ceremonial role in the appointment of elected and nominated commissioners of the JSC.” (paragraph 91)

Indeed, the majority went further and noted that while under the old Constitution, the President would issue a gazette notification to signify an appointment, in this case, even that power was not available: it was the role of the Independent Electoral and Boundaries Commission to do so (paragraph 98). Thus, the majority held that “to give the President power to appoint or even to “appoint” by mere gazettement of names is to forget our history and the mischief Article 171 was intended to cure. (paragraph 100)

Now, the majority’s textual analysis, and its argument that there should be no “implied” executive power unless expressly provided, are beyond cavil. However, there is a slight slippage in the opinion insofar as the majority flags the importance of the independence of the JSC, and the need to protect it from “manipulation” by the executive, but does not elaborate upon how, if the President’s role is purely ceremonial, or gazette-esque, such manipulation is possible. Indeed, Section 15(2) – as it stood – already provided safeguards against the most common form of abuse by an appointing authority – the pocket veto – by stipulating a three-day time limit. Indeed, this point was seized upon by Justice Njoki Ndungu in her dissent, where she went into the question of JSC independence in some detail.

If one were to hazard a guess, one might say that even though Section 15(2) of the JSC Act purports to exclude pocket vetoes, the very interpolation of the President lowers the costs of executive manipulation. One may imagine situations where notwithstanding the three-day period, the President does not confirm an appointment, and makes an argument that while the three-day period envisages executive vetting by virtue of its very existence, there has not been enough time to do so. Protracted litigation would then ensue, and while the President may ultimately lose, the point is not so much about the outcome of the case, as it is that a provision such as section 15(2) enables the possibility of constitutional hardball by the executive, and in striking it down, the majority sought to anticipate and forestall any such hardball (indeed, on this point, it is interesting to note that Justice Njoki Ndungu would have struck down the three-day limit altogether, thus enabling indefinite pocket vetoes!). Indeed, in this context, Justice Njoji Ndungu’s dissent is interesting, because here one sees, clearly spelt out, the opposite interpretive philosophy: that is, executive power should be given full reign unless explicitly contained (see e.g. para 126). As in the BBI case, Justice Njoki Ndungu’s opinion is also based on constitutional history – but on a very different reading of constitutional history. It is perhaps for historians to tell us who gets it right!

A final point, by way of clarification. On the question of the independence of the JSC, the dissent criticised the majority for conflating the independence of the JSC with the independence of the judiciary, noting that, as a constitutional commission, the JSC’s status was not that of the judiciary. To an extent, this was enabled by the majority referring, in paragraph 84, to “the independence of the judiciary and by extension the JSC.” It is important to note, however, that technical criticism aside, the majority’s focus on independence was correct: the requirement of JSC independence flows from its position as a fourth branch, or guarantor institution, which provides the infrastructure that enables the effective realisation of rights (in this case, the rule of law, by securing the independence of the judiciary). The majority’s use of the phrase “by extension”, therefore, is best understood not in the narrow sense that Justice Njoki Ndungu understood it – as equivalent to the independence of the judiciary – but in a broader sense, where commissions such as the JSC create the framework within which rights are enabled.

We can therefore see that two issues of constitutional philosophy underlie this judgment: first, that the role of the Constitution is to limit executive aggrandisement (and therefore, wherever possible, that the Constitution must be interpreted to advance that goal); and secondly, the independence of fourth branch institutions must be protected not only from visible and immediate threats, but from indirect erosion, or – perhaps more accurately – a legal environment that enables erosion. These two ideas constitute the heart of the majority opinion, and provide the underlying justifications for its reading of the constitutional text and structure.

What is a “Legal Question”?

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)]

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“We have to decide the legal question on when you have approached courts then how can you protest on the same issue.”

– A Supreme Court bench of Justices A.M. Khanwilkar and C.T. Ravikumar during oral arguments today, as reported here.

The Oxford English Dictionary defines the word “question” as “a point or topic to be investigated or discussed; a problem, or a matter forming the basis of a problem”, or “a (subject of) debate, dispute, or contention.” It defines the word “legal” as “of or relating to law; falling within the province of law.” It further defines a “question of law” as “an issue concerning a disputed point of law upon which a legal judgment or opinion is required.” By way of example, the constitutional challenge to the electoral bonds scheme – which the Supreme Court has refused to decide for the last three-and-a-half years, a point we shall come back to later in this essay – involves several legal questions, or questions of law. On the other hand, me standing on my head might be questionable for my spine, but it is not a “legal question”, and tomorrow if the Supreme Court was to say that it was, it might face bigger questions with respect to its own reputation as an institution committed to safeguarding the rule of law.

Words matter. Words matter at all times, but they matter especially when the entity that is using them is the Supreme Court, with the constitutionally entrusted power to make and declare law and impact the lives of more than a billion people. While it may be open to Humpty Dumpty to declare that “when I use a word, it means just what I choose it to mean”, it is not open to a constitutional court to behave in that fashion, unless it wishes to communicate to the public that it has no respect for its own role under the Constitution.

On page 2 of its order dated 4th October 2021, in the case titled Kisan Mahanpanchayat v Union of India, the two-judge bench of the Supreme Court (Khanwilkar and Ravikumar JJ) observes thus:

After hearing learned counsel for the concerned parties and the Attorney General for India, we deem it appropriate to examine the central issue as to whether the right to protest is an absolute right and, more so, the writ petitioner having already invoked the legal remedy before the Constitutional Court by filing writ petition, can be permitted to urge much less assert that they can still resort to protest in respect of the same subject matter which is already sub-judice before the Court.

It is difficult to imagine a single paragraph that could contain more errors of law, logic, and morality. Let us break them down.

Error of Law 1: The right to peaceful protest is a fundamental right guaranteed under Articles 19(1)(a) and (b) of the Constitution. A right under Articles 19(1)(a) and (b) may only be restricted on the basis of the sub-clauses under Articles 19(2) and (3) of the Constitution (and, in certain exceptional cases with which we are not concerned here, on the basis of competing rights). Articles 19(2) and 19(3) do not mention the word “sub-judice”, or any word that might be reasonably interpreted to mean “sub-judice”, as a basis for restricting the rights to freedom of speech and assembly. It is not open to the Court, under this Constitution, to invent new grounds for suppressing constitutional rights; indeed, that is not open to even the legislature.

Error of Law 2: There is no law that states that if I move court on an issue, I am deemed to have given up my right to protest on that issue (were a law to state that, it would be unconstitutional, but let us ignore that for a moment). Under the scheme of Article 19, it is only the legislature that can, through laws, impose restrictions upon fundamental freedoms, whose constitutionality the Court is then supposed to review for compliance with Articles 19(2) or (3). It is not for the Court to simply pronounce how citizens are or are not allowed to exercise their fundamental freedoms. Under our constitutional scheme, we have a Supreme Court, not a Supreme Censor.

Error of Law 3: A legal question is not a “legal question” if it has already been answered – and indeed, been answered by a larger bench. Khanwilkar and Ravikumar JJ entirely ignore the fact that a three-judge bench before it has already stated that the mere fact of approaching a judicial forum has no bearing upon the right to protest.

Error of Logic 1: When a party goes to court to challenge a law, it challenges the constitutional validity of the said law. Let us assume that the Supreme Court upholds the law and rejects that party’s claims. First of all, the Court might, quite simply, have gotten it wrong. History is littered with decisions that are not only wrong, have not only been admitted to be wrong, but indeed, have been so wrong that this Court has thought it fit to apologise for them. The Court consists of mortals like you and me, who are fallible, even though orders such as these suggests that they may not think so. To believe that taking a case to court is to submit to the judgment of heaven – from whose verdict there can be no dissent – is astonishingly arrogant.

Error of Logic 2: Secondly, assuming that the Court gets it right, once again, the challenge is only to the constitutional validity of a law. Constitutionally valid laws can still be unwise, unsound, foolish, and reflect bad policy-making. Indeed, how many times has the Court insisted, while delivering judgment, that it is not commenting on the “wisdom” of a law? That being the case, in what world does it make any sense for it to be even a “legal question” that taking a case to court somehow precludes people from protesting the law that has been challenged?

Error of Morality 1: It is particularly grating to hear the Supreme Court express outrage over people protesting a law after taking it to court, given its own recent record on hearing important constitutional cases. Let us recall this record. The Court took six years to hear the constitutional challenge to Aadhaar, during which the Aadhaar project became a fait accompli. The constitutional challenge to the effective abrogation of Article 370 was filed on 7th August, 2019. Two years have passed. No judgment. The constitutional challenge to the electoral bonds case was filed in 2018. Three and a half years have passed. No judgment. When habeas corpus cases were filed after the events of 5th August 2019, then-Chief Justice and now-MP Ranjan Gogoi openly mocked the individuals who had filed them, and many of those petitions were not decided for months. When, more than a year ago, the journalist Siddique Kappan was jailed by the UP police while on the way to report on the Hathras gangrape, then-Chief Justice Bobde repeatedly adjourned his Article 32 petition, and to this date, Kappan remains in jail without trial. And apart from all that, what of the farm laws themselves? When the laws were challenged last year, the Supreme Court stayed them under highly dubious circumstances, without providing any substantive reasons for the same, constituted a committee and asked for a report, and after that, has taken no action on the case. How can it be that in circumstances such as these – when there is no accountability regarding the disposal of crucial constitutional cases, and where non-decision directly favours the executive – that Khanwilkar and Ravikumar JJ now see fit to tell individuals that they cannot protest a law if they have challenged it before the Court? This is not simply a moral error, it is rank hypocrisy.

Error of Morality 2: We are living in a time where ambush PILs are a common feature of litigation before the Supreme Court. Everyone knows what ambush PILs are – even the Court does: whenever a contentious law is passed, or contentious executive action is taken, within twenty-four hours, a half-baked, shoddily-drafted, and poorly-argued PIL is filed before the Supreme Court, a PIL that is crying out to be dismissed (with costs). The strategic role played by ambush PILs is plain to see, not least that it leaves genuinely affected parties who may otherwise have chosen not to approach the Court with no option but to litigate: it is either that, or risk a contrary judgment in a thrown litigation. In the context of this reality, the Court’s order is deeply disingenuous, suggesting as it does that the act of filing a case necessarily means that the parties have sworn off all other forms of (constitutionally protected) action legislation that affects their interests.

It should therefore be clear that the statement “whether … the writ petitioner having already invoked the legal remedy before the Constitutional Court by filing writ petition, can be permitted to urge much less assert that they can still resort to protest in respect of the same subject matter” is patently absurd. The only “question”, rather, is how is it that the Constitutional Court can be permitted to urge much less assert that somehow, filing a case before it leads to an immediate loss of Article 19(1) rights of citizens. Clearly, the only way in which it can urge and assert such a proposition is by assuming the power of Humpty Dumpty: by deciding that words mean whatever it chooses they must mean. And in doing so, this two-judge bench of the Supreme Court exhibits complete contempt for the rights of citizens – the rights that it is ostensibly the guardian of – and, instead, aligns itself with State power in a way that only brings to mind the old phrase: “more loyal than the King.”

The Kenyan Court of Appeal’s BBI Judgment – IV: Thirsting for Sunlight/Some Concluding Remarks

There is a story about how, for the longest time, the poetic perfection of The Iliad confounded scholars. How could Homer both be the first of the epic bards, and the most accomplished? Foundational works are tentative, exploratory, sometimes stumbling, searching for an assurance that they are doomed to never realise. That privilege is reserved for later works, which build upon the foundation and reach the pinnacle.

The mystery was ultimately resolved when it was deduced that Homer was not the first – or even (in all probability) one – person, but part of an entire oral tradition of epic composition (a lesson, perhaps, that whether artist, judge, or lawyer, acts of creation are always collaborative). Yet the point remains: when we consider work that has taken on the burden of a beginning, we should hold it to the standards of a beginning. Not every question will be answered, not every resolution will satisfy, not every path be taken to its logical destination. But without a beginning, there will be nothing to take forward.

I’d like to think of the BBI Judgment in the words of Christopher Okigbo’s poem, Siren Limits: “For he was a shrub among the poplars/ Needing more roots/ More sap to grow to sunlight/ Thirsting for sunlight…” In the years to come, constitutional jurisprudence may put down stronger roots, and more sap may flow that takes it to sunlight, but here is where the beginning is.

In that spirit, in the first section of this post, I raise a couple of questions that future courts may be called upon to answer. These are in addition to some of the issues discussed in the previous posts, which have also been left open by the judgment(s) (constitutional statutes, referendum questions, identifying the exact elements of the basic structure etc.)

Two Questions

Making the Constitution Too Rigid?

A stand-out feature of both the High Court and the Court of Appeal judgments – as we have discussed – has been that, for the first time in basic structure history, the doctrine has been held not to constitute a bar on amendments, but to require the replication of the Constitution’s founding conditions. This, it is argued, provides a safeguard against a possible juristocracy, where the Courts stand as barriers to the people’s will, thereby leaving a revolution or a coup as the only options.

To this, the counter-argument – mentioned in Sichale JA’s dissenting opinion – is that the judiciary nonetheless remains a gatekeeper, as it will decide when a proposed amendment violates the basic structure and therefore needs to go through the rigorous four-step “re-founding” procedure. This becomes problematic, because if Article 257 is meant to empower the common person – wanjiku – to initiate a constitutional amendment process, then placing the constitutional Courts as a set of Damocles’ swords, that might at any point fall upon that process, cut it short, and demand its replacement by the far more onerous re-founding procedure, can hardly be called empowerment. After all, is it fair to expect wanjiku to approach the constitutional court every time, to check in advance, whether Article 257 should apply to a proposed amendment, or whether preparations should commence for nationwide civic education, a constituent assembly, and so on?

I suspect that it is for this reason that more than one judge in the majority did try to define the basic structure with a degree of specificity, gesturing – in particular – to the ten thematic areas set out in Article 255(1) of the Constitution (we have already seen that this argument suffers from the problem that in that case, the text explicitly allows for those provisions to be amended following specific procedures). Ultimately, however, the Court of Appeal judgments could not reach a consensus on this point. The upshot of this is that it is likely that the Kenyan courts – more than courts in other jurisdictions – will be faced with litigation that will specifically require them to identify what constitutes the basic structure.

That said, however, I believe that the concern is somewhat overstated. One thing that comes through all of the Court of Appeal judgments is a clear sense that constitutional amendment is a serious endeavour. The stakes – permanent alteration of the Constitution – are high. In such a circumstance, is it that disproportionate to have the constitutional Courts involved at the stage of vetting the amendment, simply on the question of which procedural channel it should proceed into? After all, there are jurisdictions where pre-legislative scrutiny for constitutional compliance – whether by a constitutional office such as that of the Attorney-General, or even by a court – exists. And one can easily imagine how the Kenyan courts can develop norms to minimise the disruption that this will cause. For example, the point at which one million signatures are collected and verified, could become the trigger point for judicial examination of whether the initiators should proceed to the next steps under Article 257, or whether the four-step re-founding process applies. Note that this need not be an automatic trigger: the requirement that someone has to challenge the process can remain, but the courts can develop norms that will expedite such hearings, discourage appeals on the specific question of which procedural channel a particular amendment should go down, and so on. The judiciary’s role, then, would remain a limited one: simply to adjudicate whether the proposed amendments are of such import that they need the deeper public participation envisaged in the four-step re-founding process, or whether Article 257 will do. The task will obviously be a challenging one, but not one that is beyond the remit of what courts normally do.

De-Politicising Politics, and the Perils of Vox Populi, Vox Dei

There is an argument that both through the basic structure doctrine, and through its interpretation of Article 257, the Court evinces a distrust of politicians and political processes, and a (consequent) valorisation of litigation and the judicial process; that the effect of its judgment is to make the Constitution too rigid, and effectively impossible to amend; and that, if we look at Article 257 closely, it was always meant to be a joint effort between politicians and the People, because the threshold barriers that it places – one million signatures and so on – require the institutional backing of politicians to start with. It is further argued that this is not necessarily a bad thing, as (a) even historically, the 2010 Constitution of Kenya was the product of political compromise, and not the outcome of pure public participation that the High Court’s judgment made it out to be; and (b) there is no warrant to demonise politicians and politics as tainted or compromised, or at least, relatively more tainted and compromised than litigation and adjudication.

To this, there is an added concern: judgments that claim to speak in the name of the People invariably end up flattening a plural and diverse society, with plural and diverse interests, into a single mass with a single desire – which only the Court is in a position to interpret and ventriloquise. This, then, turns into the exact top-down imposition of norms and values that the doctrine of public participation is meant to forestall.

While I believe that the Court of Appeal did not make either of the two mistakes indicated above, I do think that the argument is a powerful one, and requires the judiciary to exercise consistent vigilance (primarily upon itself). A reading of the High Court and Court of Appeal judgments, to my mind, makes it clear that the Constitution Amendment Bill of 2020 was executive-driven (indeed, it would be a bold person who would go against the unanimous finding of twelve judges, across two courts, on this). But it is easy to imagine messier, and less clear-cut situations. What happens if, for instance, an amendment proposal emerges from a set of people, and then a political party or a charismatic politician takes it up, uses their platform to amplify it, and ultimately helps to push it over the one-million signature mark? A point was made repeatedly that politicians are part of The People; now, while the distinction between the two was particularly clear in the BBI Case, what happens when it is not so, and when it becomes much more difficult to definitively say, “this proposed Amendment came from the political elite, and not from the People?” Is the answer judicial deference? But if it is deference, wouldn’t it simply allow powerful politicians to use proxies, as long as they did it more cleverly and subtly than the protagonists of the BBI?

The difficulty, I believe, lies in the fact that when you say that Article 257 is a provision for The People, you run into a host of very difficult challenges about who are the People, who are not the People, when is it that the People are acting, and so on. The intuitive point that the High Court and the Court of Appeal were getting at is a clear and powerful one: Article 257 envisages an active citizenry, one that engages with issues and generates proposals for amendments after internal social debate – and not a passive citizenry, that votes “Yes” or “No” to a binary choice placed before it by a set of powerful politicians. And while I believe that that is the correct reading of Article 257, it places courts between the Scylla of short-circuiting even legitimate politics, and the Charybdis of stripping Article 257 of its unique, public-facing character.

I think that the only possible answer to this is continuing judicial good sense. Given the issues it had to resolve, I think that it is inevitable – as pointed out above – that the BBI Judgment would leave some issues hanging. But for me, this is not a weakness of the judgment, or a reason to castigate it: I think that there are certain problems that simply can’t be resolved in advance, and need courts to “make the path by walking.”

The Grammar of Power

Stripped down to the essentials, Constitutions are about power: who holds it, who can exercise it, who can be stopped from wielding it; when, how, and by whom. Constitutions are also full of gaps, of silences unintended or strategic, of ambiguities planned and unplanned. Interpretation, thus, is often about the balance of power: resolving the gaps, silences, and ambiguities in ways that alter power relations, place – or lift – constraints upon the power that institutional actors have, and how they can deploy it. When Robert Cover writes, therefore, that “legal interpretation takes place in a field of pain and death”, we can slightly modify it to say that “constitutional interpretation takes place in a field of power.”

At its heart, I think that the BBI Judgment is about power. The issues that span a total of 1089 pages are united by one common theme: the judges in the majority believe that the Constitution acts as a barrier against the concentration of power, and as a channel for its dispersal. Why require referendum questions to be grouped together by unity of content? Because doing so will constrain the power of institutional actors to force unpalatable choices upon people in all-or-nothing referenda. Why interpret Article 257 to exclude public office holders from being initiators? Because to hold otherwise would divest power vested in the public, and instead, place it in the hands of a political executive claiming to directly “speak for the People”. Why insist on contextual public participation for the Article 257 process? Because without granular participation, even a “People-driven process” will not be free from centres of power that dominate the conversation. Why insist upon fixing the IEBC quorum at five, and for a legislative framework to conduct referenda? Because independent Fourth Branch Institutions play a vital role in checking executive impunity on a day-to-day basis, in a way that courts often cannot. And lastly, why the basic structure, why this form of the basic structure? Because the power to re-constitute the Constitution is the most consequential of all powers: institutional actors should not have it, but nor should the courts have the power to stop it. Thus, the articulation of the primary constituent power, and its exercise through – primarily – procedural steps.

And I think that it is here that we find the most important contribution of the High Court and the Court of Appeal judgments to global constitutional jurisprudence. Reams have been written by now about the “Imperial Presidency”, and the slow – but inevitable – shift, across the world, towards concentration of political power rather than its dispersal. Examining the High Court and Court of Appeals judgments through the lens of power, its structures and its forms, reveals a judiciary that is working with constitutional text and context to combat the institutionalisation and centralisation of power, to prevent the Constitution from being used as the vehicle of such a project, and – through interpretive method (see the third post in the series) – to try and future-proof it from ever being so used. It is too early to know if the effort will succeed. The sap and the roots are now the responsibility of future judgments, if sunlight is to be reached, and not just thirsted for.

The Hydra and the Sword: Parting Thoughts

There are moments in one’s life when you can tell someone, with utter clarity, that “I was there when…” For my part, I will always remember where I was, and what I was doing, when, during oral arguments before the Court of Appeal, I heard Dr. Muthomi Thiankolu’s ten-minute summary of Kenyan constitutional history through the allegory of the Hydra of Lerna. It ended thus:

“If you drop the sword, My Lords and My Ladies, we have been there before. When the courts drop the sword of the Constitution, we had torture chambers. We had detentions without trial. We had sedition laws. It may sound, My Lord, that I am exaggerating, but the whole thing began in small bits.”

I remember it because by the end, I was almost in tears. It took me back to a moment, more than four years ago, when I stood in another court and heard a lawyer channel Justice William O. Douglas to tell the bench: “As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness.”

The chronicle of events that followed those words does not make for pleasant reading. But as I heard Dr. Thiankolu speak of an era of executive impunity – an impunity enabled by a judiciary (with a few exceptions) that saw itself as an extended arm of the executive – what struck me was not how familiar (detentions without trial!) his examples sounded, but that he spoke of them in the past tense. And on the 20th of August, as judge after judge in the Court of Appeal read out their pronouncement, it seemed that an exclamation point was being added to those arguments: the past really had become a foreign country.

One person’s past is invariably another person’s present. But the present sometimes overwhelms us with its heaviness. It creates an illusion of permanence that forecloses the possibility of imagining a future where this present has become the past. We cannot bootstrap ourselves out of such moments: we need someone to show us the way, or to show us, at least, that a way exists.

And so, perhaps the great – and intangible – gift that the Kenyan courts have given to those stuck in an interminable present, is a simple reminder: it needn’t always be like this.

Evasion, Hypocrisy, and Duplicity: The Legacy of Chief Justice Bobde

At midnight today, Sharad Bobde will no longer be the Chief Justice of India.

As on previous occasions (see here and here), this post will assess the legacy of the outgoing Chief Justice. In the case of Chief Justice Bobde, this might seem a somewhat difficult task. What can one even say about a tenure that lasted seventeen months, through a particularly stormy time, and yielded precisely zero judgments of constitutional import, other than a late set of guidelines on the appointment of ad-hoc judges? But, as we shall see, the absence of constitutional judgments does not mean that CJI Bobde did not enjoy a hugely consequential tenure. Through a refusal to hear cases (judicial evasion), shoddily reasoned “interim orders” (hypocrisy), and the arbitrary allocation of cases under the “master of the roster” powers (duplicity), CJI Bobde’s tenure saw the further acceleration of trends begun under his predecessors: that of the Supreme Court, in effect, turning into an Executive Court (see here). The difference between CJI Bobde and his predecessors was that under the latter, there were still occasions when the Supreme Court continued to act like a “court”, as we understand it. Under CJI Bobde, there was very little evidence of that.

I preface this post with three caveats. First, many of the interim orders that I will discuss were per curiam, i.e., authored and signed by all the judges on the bench. While CJI Bobde, by virtue of being the Chief Justice, headed those benches, in formal terms, he was not the sole author of those orders: the “bench”, as a whole, was. The reason why these orders are discussed as CJI Bobde’s legacy is that, as any observer knows, most puisne judges rarely disagree with the senior judge on the bench. Disagreement is even rarer when the senior judge is the Chief Justice. Thus, while this post is not meant to absolve puisne judges of their responsibility in being co-signatories to the orders that it will critique, its central thesis – that they constitute the legacy of CJI Bobde – remains intact.

Secondly, it may be argued that conducting constitutional hearings with multiple judges and a battery of lawyers was no longer feasible once the pandemic began, and the lockdown was imposed. To this, two answers may be made. First, the Supreme Court was functioning normally during the first five months of CJI Bobde’s tenure, but the only significant constitutional hearings were repeated attempts to send the Sabarimala case to a bench of nine judges, and the referral hearing in Article 370. More importantly, however, during the pandemic, constitutional courts all over the world made arrangements to hear significant cases online. And a five-judge bench of the Supreme Court itself heard the Maratha Reservation Case earlier this year. Consequently, the pandemic itself was no reason for the Court not to schedule – and hear – matters of constitutional import.

Thirdly, in view of various remarks that fell from the Supreme Court today, it feels important to reiterate that critique is neither personal, nor “destructive” of the institution. Supreme Court judges wield tremendous power, and Chief Justices even more so. This blog has always taken the view that the function of words is to call power to account, and – when necessary – to do so adversarially. This post continues in that spirit.

Two Days in Spring

CJI Bobde’s tenure is perhaps best summed up by what transpired in Courtroom No. 1 of the Supreme Court on two days. On 26th March 2021, a three-judge bench comprising of CJI Bobde and Justices Bopanna and Ramasubramanian passed an interim order refusing to stay the electoral bonds scheme, which allows for limitless, anonymous corporate donations to political parties. The electoral bonds scheme had been notified at the beginning of 2018, and been immediately challenged thereafter. At the time, Dipak Misra J. was Chief Justice. He did not list it for substantive hearing. Then came Chief Justice Gogoi, who initially followed suit, then listed the matter on an urgent application just before the 2019 general election, and hypocritically claimed that there was not enough time to hear such an important case. This judicial hypocrisy was raised to the level of fine art during the tenure of CJI Bobde. He also did not hear the matter throughout his tenure, before listing an urgent interim application just before the (still-ongoing) state elections, and granting it one day of hearing. Going further than CJI Gogoi, CJI Bobde wrote in his order that the fact that the “bonds had been released without impediment in 2018, 2019, and 2020” was one of the grounds why there was no urgent necessity for a stay. The Supreme Court’s own evasion of the case, thus, became a ground for it to deny relief to the petitioners.

Not only that, however, CJI Bobde’s order went on to grant a presumptive seal of approval to the electoral bonds scheme, based on a series of logical leaps and absurd presumptions (summed up here). A starring role was played by the the Court’s observation that electoral bonds were not, actually, anonymous. Anyone who wanted to know who was donating to a political party could simply look up companies’ financial statements, political parties’ statements of accounts, and then engage in a “match the following” exercise. However, as commentators pointed out, this was simply false, as a matter of law and fact: thanks to various legal amendments that accompanied the enactment of the electoral bonds scheme, a “match the following” exercise was not possible. That apart, even if it was, this was an astounding argument coming from a Court that has, in the past, piously commented on the “right to know” in the context of elections: that citizens, in order to find out who funds political parties, would have to access a political party’s statement of account, look at the numbers, access (all?) companies’ annual statements, look at the numbers, and see if anything matched. That CJI Bobde believed this was a legitimate burden to foist upon the voting public was extremely revealing. Not only was the order shoddily reasoned, but even if the arguments had been correct on their own terms, all they revealed was contempt for citizens’ rights, and a bending-over-backwards to shield the government from scrutiny.*

Later that same day, CJI Bobde, sitting in a bench of three, heard a case involving the deportation of Rohingya refugees to Myanmar. The hearing stood out for a range of unverified statements made by government counsel, CJI Bobde’s apparent bewilderment that Article 21 applied to non-citizens, and – in particular – his refusal to hear counsel for the UN Special Rapporteur. This last was another particularly hypocritical move given that the Supreme Court has, over the previous four decades, built its reputation on the basis of how it has relaxed the rules of standing in order to protect fundamental rights. A few days later, however, the bench’s order on the hearing surpassed even his order in the electoral bonds case. As I wrote here, the order ignored every contention that had actually been raised by petitioners’ counsel. It recorded “serious allegations” by the Union of India (pertaining to national security and to “touts”) without any scrutiny. And on the issue of ongoing political persecution in Myanmar, which was directly relevant to the principle of non refoulement, it made the wholly illogical remark: “we cannot comment on what is happening in another country.” In short, CJI Bobde’s bench condemned the refugees to be deported to a country that had engaged in a genocidal war of persecution against them, in an “interim order” that could not muster up a single legal – or logical – argument in its defence.

The second day was the 22nd of April, one day before CJI Bobde’s retirement. As India reeled under the second wave of Covid-19, a number of High Courts sprung into action, to protect citizens’ right to life: the Delhi High Court and the Bombay High Courts passed crucial orders on the availability of oxygen supply. The Delhi High Court, indeed, sat till after 10 PM to ensure that oxygen reached hospitals so that patients’ lives could be saved. The very next day, however – acting on an application filed by Vedanta Ltd asking that it be allowed to reopen its closed plant for the purposes of manufacturing oxygen – the Court created a “suo motu” petition with respect to Covid-19. It appointed Vedanta’s counsel, Mr. Harish Salve, as an amicus (he withdrew the next day). It then passed an extraordinary order justifying what was effectively an attempt to interfere with High Courts that were doing their job. CJI Bobde – joined by Justices Bhat and Rao – noted that “the High Courts have passed certain orders which may have the effect of accelerating and prioritising the services to a certain set of people and slowing down the availability of these resources to certain other groups whether the groups are local, regional or otherwise.”

Now this is a very serious accusation, and one would expect that when the Supreme Court effectively accuses High Courts of acting to benefit their own jurisdictions, it would be accompanied by unimpeachable evidence. However, there was zero – yes, zero – evidence that accompanied the order. CJI Bobde and his brother judges did not produce a single High Court order that, according to them, had “slowed down the availability of resources” to any group. And it was on the basis of this unproven assertion – along with many other dubious claims (see this thread) that the Court issued notice and asked various petitioners to show cause why “common orders” should not be passed on an extraordinarily broad range of issues, from the “supply of oxygen” to the “method and manner of vaccines”. Once again, the judicial hypocrisy was striking: throughout his tenure, CJI Bobde had repeatedly told petitioners to “approach the High Courts”, that “we are trying to discourage Article 32 petitions”, and – in an extra-judicial interview during the first wave of Covid – publicly taken an “executive knows best, the Courts should refrain from interfering” line when it came to judicial scrutiny of State action during the pandemic.**

There is a pattern to these three orders.*** First, they were all “interim orders”, passed while the underlying substantive petitions remained unheard. In the first two cases, the substantive petitions were pending for years, a classical form of judicial evasion where the Court’s failure to decide a case benefits the central government; in the third case, the basis of Vedanta’s application was a pending petition that was being heard by another judge, and taken away from him, presumably by the Chief Justice exercising his opaque, uncanalised “master of the roster” powers. Secondly, they were passed on the basis of factual and legal assertions that were either entirely speculative or blatantly untrue. Thirdly, arguments inconvenient to the conclusion were simply ignored. And fourthly, the outcome, in each of these cases, favoured the central executive. In sum, the effect of the Supreme Court’s conduct was to turn it into an extended arm of the executive, either through silence or through unreasoned decrees.

Evasion

Previously on this blog, I have defined “judicial evasion” in the following terms:

… by keeping a case pending, and delaying adjudication, the Court effectively decides it in favour of one of the parties (most often, the party in a stronger position, i.e., the government), simply by allowing status quo to continue.

At the time that CJI Bobde’s tenure began, in November 2019, the following important constitutional cases were pending adjudication:

• The constitutional challenge to the effective abrogation of Article 370, and the splitting of the erstwhile state of Jammu & Kashmir into two union territories (from 6th August, 2019)
• The constitutional challenge to EWS reservations (from 10 January 2019)
• The Constitutional challenge to the Aadhaar amendment ordinance (later the Act) (from July 2019)
• Judicial review over money bills (from 13 November 2019)

At the beginning of CJI Bobde’s tenure, the constitutional challenge to the Citizenship Amendment Act (CAA) also came to Court.

CJI Bobde’s tenure, as mentioned above, lasted seventeen months. On the date of his retirement, not one of these cases had been substantively heard or decided. In each of these cases – with the possible exception of the CAA – judicial evasion directly favoured the central executive. In the 370/Union Territory cases, it allowed the continued consolidation of a status quo that has, by now, turned into a fait accompli (recall that although the case itself was not before the Chief Justice, the power of constituting Constitution Benches remains within the sole prerogative of the Chief Justice). In the EWS reservations case, in the absence of a stay, the reservations in question continue. The Aadhaar amendment ordinance – which sought to revive provisions of the Aadhaar Act that were struck down by the Supreme Court in the Puttaswamy judgment – continues to be in force. So does the Aadhaar Act itself, which would fail if the Court was to find that judicial review over speakers’ certification of money bills was indeed permissible (although with Aadhaar, once again, fait accompli means it is difficult to see how ground realities will now be reversed, regardless of legal outcomes).

Seventeen months. Not a single judgment on any of these constitutional issues. There is little more to say, other than to point out that under CJI Bobde, the Supreme Court facilitated the creation of multiple fait accompli that directly benefited the central executive.

Hypocrisy

I have, in the first section of this post, dealt with three “interim orders” passed by benches headed by CJI Bobde’s benches, which stand out for their lack of reasoning, reliance on incorrect or misleading facts, and pro-executive outcomes. A fourth example is perhaps the most egregious of the lot. In February of 2020, in a detailed and reasoned order, the Karnataka High Court granted bail to twenty CAA protesters. The matter was appealed to the Supreme Court, where CJI Bobde – alongside Justices Gavai and Surya Kant – stayed the bail order, thus ensuring that individuals who had been set at liberty by the High Court would have to stay in jail pending trial. This order stayed in force for six months, until in September 2020, the Supreme Court quietly lifted it. At no point did CJI Bobde’s bench provide any reasoning for why twenty men had to spend six months in jail, even after the High Court had ordered their release. No reasoning was given for why the High Court’s order was insufficient, or what changed in six months to make it sufficient. This, in other words, is rule by interim order, where CJI Bobde’s bench exempted itself from the obligation of providing reasons for its (hugely consequential) actions.

Duplicity

The Supreme Court of India has twenty-nine judges. As might be expected, these judges hold very different views on a range of issues, including the interpretation of fundamental rights. Some judges set a very high store by personal liberty, and believe that the State ought to be held to strict account when it curtails the liberty of citizens. Other judges view personal liberty as something of a nuisance, and see nothing wrong with individuals spending months or years behind bars, without trial.

This multiplicity of views does not mean, however – as some scholars have argued – that “there is not one Supreme Court, but fourteen Supreme Courts of India.” This is not true for the simple reason that, after a series of judgments delivered during the tenure of CJI Dipak Misra (discussed on this blog), the Chief Justice, as Master of the Roster, has absolute, opaque, and uncanalised power in assigning cases to specific benches: others abide our question, thou art free. Let us therefore be very clear that until the Master of the Roster system is reformed, there is one Supreme Court, and that is the Supreme Court of the Chief Justice of India. It follows that when that Court speaks with a forked tongue, the responsibility lies on precisely one set of shoulders – the Chief Justice.

As an example of this forked tongue under the tenure of CJI Bobde, compare the contrasting fortunes of two members of the media, Arnab Goswami and Siddique Kappan. Both were arrested and incarcerated at around the same time, in October/November 2020: the Mahrashtra government booked Goswami for abetment to suicide, while Kappan was “picked up” while on his way to cover the Hathras gangrape, and later booked under the National Security Act (for a detailed timeline, see here). Petitions on behalf of both individuals landed before the Supreme Court: Goswami’s through a Special Leave Petition challenging an order of the Bombay High Court refusing him bail, and Kappan’s (initially) through a habeas corpus under Article 32 of the Constitution.**** Goswami’s case was listed overnight, heard, and bail was (correctly) granted; in a judgment delivered later in the month of November, Chandrachud J. (correctly) stated that “even a day” spent in jail was a day too many, from the perspective of personal liberty.

None of that, however, had any bearing on Kappan’s case, which the CJI kept for himself. First, the CJI asked why Kappan’s lawyers couldn’t approach the Allahabad High Court (a particular irony, given the CJI’s strenuous efforts to stop the High Courts from functioning, on the penultimate day of his tenure). Then, on multiple days the case was adjourned because CJI Bobde was busy hearing the corporate dispute between the Tatas and Cyrus Mistry. On the date of writing this piece, more than six months have passed since Kappan’s arrest. The Supreme Court – that ruled on the validity of Goswami’s bail in a single day – hasn’t seen fit to pass a reasoned judgment. Kappan remains in jail, with the latest news being that he has been hospitalised with Covid. If – as A.G. Noorani wrote – that Chief Justice Gogoi had driven “a coach and four” upon the writ of habeas corpus – the last bastion of the individual against State overreach – than CJI Bobde came back for the remains, and drove a truck over them, just to make sure that the writ was truly dead.

As I have said above, this is not a case of poly-vocality, or the dissonance of jurisprudence which comes with twenty-nine judges in a single institution. That excuse cannot fly when the Chief Justice retains absolute powers of case allocation. It is, then, not dissonance, but duplicity: duplicity in the exercise of the powers of the master of the roster, which – as this blog has pointed out before – in the context of the structure of the Supreme Court, have transformed into substantive powers to direct the outcomes of cases. This is, of course, a single example. They could be multiplied.

Conclusion: The Mouse under the Throne

As with previous posts, I have limited this critique to CJI Bobde’s judicial orders, and to his conduct as the Master of the Roster. I have not, therefore, considered a range of problematic statements made in court, such as, for example, “we will hear the case when the violence stops“, “the RTI is being misused“, and “women should not be at protests.” These are on the record, and history will judge.

Some commentators have classified Chief Justice Bobde’s tenure as that of a CJI who, effectively, did nothing in the face of multiple crises. This is a tempting – and not entirely incorrect – position to take. After all, it was under the stewardship of CJI Bobde that the Supreme Court, for all practical purposes, and barring a few honourable exceptions, went missing during the first wave of Covid-19, its behaviour – and deference to the central executive – particularly egregious during the migrants’ crisis; and it was under the stewardship of CJI Bobde that vital constitutional cases went into cold storage, if not buried altogether.

In my view, however, this would be a mistake. When summing up the tenure of CJI Gogoi, I wrote that he had overseen the rise of the executive court, a court that spoke the language of the executive, and had become indistinguishable from it. Under CJI Bobde, this process was accelerated, but in a more insidious form: because, while you can critique a judgment, it is much harder to critique a non-judgment, or a five-page interim order (although the shoddiness of the interim orders in question, as pointed out above, makes them fail even on their own terms). It is much more difficult to show how inaction has the effect of benefiting the central executive and to unpack judicial evasion, rather than to show how a judgment is flawed in its understanding of fundamental rights and State power. But the entire tenure of CJI Bobde, as we have seen, was either evasion or judgment by interim order, where in either case, and invariably, the executive always prevailed.

Thus, perhaps the best image for understanding where CJI Bobde has brought the Supreme Court is this: in classical literature, the judiciary is sometimes called “lions under the throne” (via Bacon). The implications, for present-day jurisprudence, are obvious: the task of the judiciary is to keep a check on the rulers without supplanting them. But now think of a mouse under the throne, who sometimes squeaks, and sometimes ventures out to bite the toes of anyone coming before the ruler. One need not press the image too hard, but only say: a judiciary on its way to becoming a mouse under the throne is a sad sight indeed.

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*Note, however, that electoral bonds are asymmetrical, in that the government – via the SBI – is in a position to know who is donating money. This is why judicial evasion in this case has the effect of benefiting the central executive.

**The day after the hearing – i.e., today – the Supreme Court bench observed that people were misrepresenting its order, especially as it had not stayed the High Court proceedings. This is disingenuous: the absence of a formal stay (which would have been truly indefensible) is not a ground for praise, and nor does it indicate an absence of interference. A record of oral arguments before the Court shows that government counsel specifically stated that they would inform the various High Courts that the Supreme Court had taken cognisance of the matter. Indeed, later the same day, government counsel did exactly that. It is a different matter that the various High Courts elected to proceed with the cases before them nonetheless. That apart, the Supreme Court’s order, in asking petitioners before the various High Courts to “show cause” why common orders should not be passed on a range of issues is problematic on its own terms, for reasons discussed in the body of the blog post.

*** Which – taken together, and other than the Article 224A guidelines – are probably the only significant orders on constitutional issues that CJI Bobde’s benches passed during his tenure (other than the initial, wholly unprincipled expansion of the Court’s review jurisdiction of the Sabarimala issue, which I have discussed previously on this blog, and whose unprincipled character was revealed in how the Court refused to apply it in the first significant review case before it after Sabarimala, i.e. the Aadhaar Review).

****To forestall an inevitable – and flawed – objection, technically, the requirement for admission of a special leave petition is meant to be more stringent than that of an Article 32 petition, with the hint being in the word “special”.

Contempt of Court and Freedom of Speech: An Analysis of the Prashant Bhushan Judgment

Editor’s Note 1: Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).

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Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].

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I began reading the 108-page long judgment (link) of the Supreme Court, which found Prashant Bhushan guilty of serious “contempt”, with a view to analysing its legal reasoning. On finishing the judgment, however, I found myself in a conundrum: there is no legal reasoning, and therefore nothing to analyse. In particular, Mr. Bhushan had filed an extensive reply (link) to the contempt proceedings against him, contextualising and defending the two tweets for which these proceedings were initiated; among other things, this Reply set out the basis for Mr. Bhushan’s opinion about the role of the last four Chief Justices in the decline of Indian democracy.

In the 108-page long judgment (the substantive part of which begins at page 93), the Supreme Court refuses entirely to engage with Mr. Bhushan’s reply. There are some colourful – and somewhat confusing – references to the Supreme Court being the “epitome” (?) of the judiciary, the need to maintain “the comity of nations” (?!), and an “iron hand” (!). There is, however, no legal reasoning, and no examination of the Reply.

It stands to reason that if an individual has been accused of contempt of court because they expressed an opinion about the role of four Chief Justices in undermining democracy, and that individual has filed a Reply setting out the facts upon the basis of which they arrived at that opinion, a “judgment” holding that individual guilty of contempt cannot pretend that the Reply does not exist. It reminds me of the times I used to take a football from the halfway line, dribble it across the pitch, and kick it into the goal – without any opposition players on the field.

But if the Court chooses not to explain itself, then there is little purpose to be served in excavating an explanation that it ought to have made, and then engaging with that imaginary explanation on legal grounds.

Consequently, I end this post here. Interested readers may consult the Reply, the “Judgment”, and draw their own conclusions.