“Supreme Court of India is the most powerful institution in India,” ran the constant refrain of the late, lamented Associate Justice Antonin Scalia, of the Supreme Court of United States (SCOTUS). Mind you, this was one of The Nine on the Bench for life. There were have just been 114 Justices of SCOTUS since it was born in 1789. SCOTUS gets to decide which cause to hear and they decide hardly 75 cases annually. Sitting in Mumbai, on the lawns of a Hotel, in 2000s Scalia said this, in response to a news item that our Supreme Court has taken up hearing suo motu, of a public interest cause, based on a news investigation story. He said that his Court had no such jurisdiction as matters had to be escalated to it or come before it in ordinary course,in the hierarchical ladder. Not even Bush v Gore.
Now, nearly 20 years down the road, the apex court has become far more powerful than it has ever been, in the last 70 years of its existence. We now have a bench strength of 34 which never sits together as one, but split as benches of 2 or more and hears a variety of causes on their Boards, as picked and chosen by the Chief Justice of India as Master of the Roster. Day in and day out ,not only the daily orders of the top court that make the headlines, even the observations of the learned judges, during the hearings go viral on 24×7 electronic media. Caged parrot for CBI Add the social media potion, you have an on your face genre of the Supreme Court, in our lives.
So much so, there was this joke in a vernacular weekly. Man 1 “Boss, what happened, you are still around here. You were getting married this week, right. How are the preparations?” Man 2, “Hey, what am I to say, Some interloper has filed a writ petition before the Supreme Court and obtained stay of my marriage.” It is no joke. Instead, the joke encapsulates the power of the top court to directly impinge on our lives. Supreme Court is no longer perceived as an institution, far removed from the common man.
Among the three branches of democracy, what with the Executive and Legislature, suffering depthss in their moral standing, the Supreme Court, after the Armed Forces, has retained the highest credibility. The kind of issues that escalate to it show a variety that Gods would feel privileged to handle. Our forefathers had contemplated that under Art.245 of the Constitution of India, it would be for Parliament ‘to make law’. The role of the Supreme Court would be to ‘interpret the law’.
But, in reality, it is now a matter of common knowledge, not legalese, that the Supreme Court is supremely confident and engaged in judicial legislation. The decade from 2011 to 2019 is a classic period demonstrative of this extraordinary faculty. Just the trashing of the National Judicial Appointments Commission Act in 2014, affirming the creation of Collegium- an institution created by the apex court, to appoint judges to constitutional courts by itself- is a supreme example. The makers of the Constitution had vested the power of appointment of judges with the Executive, the elected government, in ‘consultation’ or by stretch of law ‘concurrence’ of the Chief Justice of India. But the top court in a veritable coup, usurped the power and in 2014 dumped the NJAC, a unanimously passed legislation of Parliament, allied with consent of 50% of the State legislatures, as a constitutional machinery.
In the last decade, the robed brethren on the pulpit have displayed an amazing proclivity to grab the jurisdiction of many a cause, at the very first instance. Even those they may rightly belong to the Magistracy. Judicial integrity and discipline which the Supreme Court has always commended as too basic to be discarded, have gone for a toss, by itself, assuming jurisdiction, which may technically belong to the hierarchy below. That does not augur well for infusing health and confidence in the courts below which are denied and deprived of handling sensitive causes at the lower rungs.
One cannot blindly blame the top court for its inclination to overreach. With the other two arms of the democratic polity, willingly yielding space, ‘the Supreme Court is literally left with no option as judicial restraint may be prejudicial to public interest’ as an academician put it. It is too late in the day to talk of the limited remit of the Supreme Court ‘not to make law’. Now, the Courts, world over indulge in ‘making law’ and one cannot wish it away. Forget not that the UK Supreme Court had recently unanimously, all the judges sitting together as one, had overturned the pro roguing of House of Commons, a command of the monarch, Queen of England, in the wake of the Brexit imbroglio. It even led to Boris Johnson, incumbent Conservative Prime Minister, seeking a fresh mandate in Dec,2019. Judiciary has so much impact on the other two branches.
But, the point is our Supreme Court has led the way. Just a couple of instances, may drive home the point. We had Donald J Trump, the US President packing off the FBI Chief James Comey in 2017. There was no litigation mounted by Comey himself or by any pro active NGO. Cut to India. The transfer, removal and annointment of CBI Supremo, are all subjected to judicial review, even if the candidates quietly walk away. Or take the case of Trump’s outrageous refusal to co operate with the House of Representatives, in the Impeachment motion. The House is a co equal branch with the President, representing the Executive. The House is the supreme body vested with the right to initiate impeachment under their Constitution. The House is still struggling to exercise its power . Americans are wondering why? Yet, there is nothing any one can do as the doors of the Supreme Court are shut. Incidentally, it is the House that has approached a lower court to compel the witnesses and production of documents and that is awaiting culmination in the hierarchy.
Imagine the scenario in India, Tom and Dick and Harry or Ram, Krishna and Siva would have moved the Supreme Court and the Executive would have been compelled to do the bidding of the Legislature. Or, the Supreme Court itself may have suo motu taken up the lis. Such is the power of our law lords. Decades ago, there was a Krishna Iyer who was known and popular. For he began as a politician and a Minister. But now there are rock star judges, be it branded as liberals or conservatives or middle of the road entities. The public at large are aware of their names and sketchy details of their pronouncements too, for they are coming to our drawing rooms on an hourly basis. The ideological food fights that take place on the idiot boxes are in the names of the verdicts that tumble out of the top court in an assembly line.
The causes could be as varied as upholding Aadhaar legislation, Triple Talaq, Sabarimala, Rafale Defence deal, Karnataka and Maharashtra Assembly formations, Tamil Nadu local body elections, and of course Ramjanmabhoomi, which would take its pride of place. 5 Judges sat on a Saturday, after the Chief Justice met even the security officials from Uttar Pradesh. It is impossible to conceive of such happenings from any other constitutional court in the democratic world. Welcome. Take a bow, Our Supreme Court has become truly Supreme.
(Narasimhan Vijayaraghavan-practising advocate in the Madras High Court)
