The Supreme Court Is Nobody’s Fiefdom — Certainly Not That Of The So-Called ‘Liberals’  

In March 2020, a Public Interest Litigation (PIL) was filed in the Supreme Court regarding the plight of migrant workers during the Covid lockdown.

On 30 March, the court took note of the central government’s report, which enlisted the measures taken for migrant workers’ welfare and passed some guidelines for the state governments and media to implement.

The central government promptly wrote to all the state governments through the Ministry of Home Affairs (MHA) and to media associations through the Information and Broadcasting ministry, asking them to abide by the court guidelines.

The PIL was eventually closed on 27 April 2020 in view of the Solicitor General’s statement that the court’s guidelines will continue to be followed.

By now, several PILs had been filed on behalf of migrant workers. It appears that the first PIL, which was closed earlier, was attempted to be reopened by the petitioner and the court refused to entertain this plea on 15 May.

It also appears that the during the course of these proceedings, the court made some oral observations regarding its inability to monitor the situation.

This led to a barrage of criticisms regarding the court’s alleged insensitivity. One former Supreme Court judge gave the court a ‘F-grade’.

The president of the Supreme Court Bar Association indulged in dramatics, asking “if the judges had seen their grandchild walking on the road, and suddenly see a car rushing from the other side, would the judges have not tried to save the child?”.

A set of 10 lawyers, including two former Congress ministers, wrote to the Chief Justice of India, accusing the court of retreating “into a self-effacing deference, leaving millions of Indian citizens, especially those who are poor, vulnerable and impoverished, to the mercy of the executive”.

They even compared the court’s conduct to that of its ‘darkest hour’ — when it ruled that personal liberties stood suspended during the Emergency in the infamous Habeas Corpus case.

These comparisons and condemnations are unfortunate for three reasons. Firstly, as Harish Salve pointed out elsewhere, they do not fall within the limits of legitimate criticism of any court, leave alone the highest one.

Second, they appear to be part of a pattern of criticisms which essentially aims to pressure the court into toeing a particular line on ideological issues.

Finally, they want the court to perform tasks it is ill-equipped to do, only to criticise it later for falling short of expectations.

Recently, while granting bail to some persons, a judge of the Madras High Court compared the present situation in the country to “times of armed-conflict or emergency.”

For the Supreme Court to feel it is does not have the capability to generally monitor government measures in such times is completely legitimate.

In any event, the Supreme Court has put the controversy to rest by initiating suo-motu proceedings to monitor the crisis.

But the tendency to exert pressure on the judiciary with a view to direct its course deserves some attention.

In response to Salve’s view that “criticising the judges and condemning the institution by ascribing motives…and accusing them of lack of intellectual integrity” is not legitimate, one of the 10 lawyers who wrote the hostile letter to the Chief Justice, Navroz Seervai, says, “Mr. Salve, who sanctimoniously declaims that motives should not be ascribed to judges…promptly and conveniently goes on to ascribe motives and intellectual dishonesty to those whom he attacks.”

This response to Salve’s point betrays two fallacies. No one has ever claimed that judges can’t be accused of motives if there is sufficient evidence.

But these 10 lawyers and other critics of the Supreme Court have accused the concerned judges of being pliant to the executive in the most cavalier fashion.

This is a direct attack on the integrity of the concerned judge. For every set of activist judges the Indian courts, or for that matter Constitutional courts in many countries, have had their share of judges with a conservative orientation.

There have been many judges of the Supreme Court who have been reluctant to entertain PILs and many scholars and lawyers who have criticised some of the court’s activist judgments.

None of them have been accused of doing it out of deference to the executive. More importantly, unfair criticism of a judge can never be equated with criticising even the noblest of private persons for the simple reason that the former represents an institution — an institution that depends, for its efficacy, on the trust and respect reposed in it by the people.

This was the sage advice given by the leading Constitutional law scholar, S P Sathe, to ‘social activists’ after the Supreme Court punished Arudhati Roy for contempt in the Narmada Bachao Andolan case: “The judiciary is the weakest organ of the state. It has control neither over the sword nor over the purse. Its strength lies in the people’s faith in its independence, integrity and impartiality. Criticism should not go to the extent of shaking the foundation of its social legitimacy.”

The Constitution of India is an intricate tapestry of competing principles and rights. Courts are often called upon to balance them.

With the advent of a globalised Indian economy in the 1990s, courts had to increasingly deal with PILs regarding conflict between government’s development activities and competing interests like those of the environment, workmen et cetera.

Citing a few decisions of the Supreme Court that appear to have prioritised the former, Prashant Bhushan remarks that the “ideology of the Supreme Court has shifted decisively in favour of the rich and powerful (and) …Court has bought…an ideology which venerates the virtues of the free market.”

The ideology behind such attacks on the court has continued to dominate the narrative.

One author draws a poignant comparison between this trend and a similar tendency in the pre-emergency era to portray the Supreme Court as ‘regressive’ and ‘anti-land reform’.

He says: “this discourse was so successfully mobilised by Indira Gandhi and Mohan Kumaramangalam in the early 1970s in their call for ‘committed judges’ who were ideologically suitable…The enduring legacy of Kumaramangalam is that the dominant critique of PIL today continues to mimic the terms of this discourse.”

In what is clearly a perpetuation of this narrative, no stone is left unturned to exploit the miserable plight of migrant workers for ideological purposes and to portray their situation through a class prism.

Any one who disagrees is assumed to do so out of fear, deference or even worse — collusion.

The quest of our leftist friends appears to be more for ideologically ‘committed judges’ than for any solutions to the problems of the poor.