Guardian of liberties
BY VIKRAM RAGHVAN IN THE HINDU
In the rush of anniversaries last month, a momentous occasion that has had a huge impact on democracy in India went almost unnoticed: The founding of the Supreme Court on January 28, 1950.
We observed several 60th anniversaries last month. January 24 marked 60 years since the Constituent Assembly’s last session. The Election Commission observed its diamond jubilee on January 25. The next day, with much fanfare, we celebrated the 60th Republic Day when the Constitution became effective. As Nehru put it, “events crowd in upon us and because of their quick succession we are apt to miss their significance.” Nehru had January 26 in mind, for, he feared that future generations might ignore its significance. However, given the parades and pageantry with which we annually commemorate that event, Nehru’s admonition is better suited for another date: January 28, when the Supreme Court of India was inaugurated.
The Court’s founding in 1950 was a momentous occasion. According to K.M. Munshi, it was an event “no less spectacular and important” than India’s inauguration as a Republic two days before. It took place in the ornate, oak-panelled Princes’ Chamber of Parliament House because the Court had no premises of its own (it moved to its present building only in 1958). Chief Justice Kania donned a distinctive red Gujarati turban, and he and his five other colleagues wore flowing black robes for the occasion. Nehru, Patel, and other cabinet ministers; chief justices and judges of the high courts; and lawyers and diplomats attended the glittering function.
Attorney General Motilal Setalvad opened the proceedings. He pointed out that the Constitution conferred the Court with unprecedented powers and a jurisdiction wider than that of its counterparts. He pledged the bar’s “loyal and whole-hearted cooperation” for the tasks ahead. Responding from the bench, Kania declared that the Court would “stand firm and aloof from party politics and political theories”. It would administer law with “goodwill and sympathy for all”, but without being allied to anyone. Kania also predicted, accurately, we can say with hindsight, that the Court would have “far-reaching influence in the constitutional history and progress” of India.
As the Parthenon of our democracy, the Court’s principal role is to interpret and protect the world’s longest written constitution. Unlike the executive and the legislative branches of government, the judiciary’s powers are not divided between Centre and the States. The Court, therefore, enjoys unrivalled national jurisdiction to resolve cases and controversies, including the disputes between the Centre and States and among States. It has the extraordinary power to issue writs to remedy fundamental rights violations. It also serves as the final appellate forum for the thousands of civil and criminal cases that navigate a maze of lower courts and tribunals. In addition, the Court can advise the President on important questions of law and fact.
During its six decades, the Court has blazed an impressive trail. As the guardian of our liberties, it has stoutly defended the Constitution’s fundamental rights and freedoms. It has been especially emphatic in protecting the print media’s ability to operate without governmental interference. It has conclusively affirmed that secularism is India’s basic constitutional faith and decisively checked the misuse of Article 356 for partisan political purposes. It has struck down several unconstitutional Central and State laws, and to the amazement of foreign observers, even vetoed constitutional amendments for damaging the Constitution’s “basic features”. The Court has also zealously safeguarded its independence, going so far as to wrest control over judges’ appointments from the executive.
For the proverbial “common man”, the Court’s most meaningful achievements have been in public interest litigation. Making amends for its complicity during the Emergency, the Court modified its procedures to hear cases on behalf of the poor and marginalised. Through several far-reaching orders, it sought to ameliorate the conditions of those without political patrons like bonded labourers, prisoners, homeless, and mentally ill. Later, the Court turned its attention to such “middle-class” matters as urban pollution, political corruption, and higher education.
As with any of our national institutions, the Court has its share of shortcomings. In stark contrast to its defence of press freedom, the Court has readily upheld draconian “anti-terror” laws disregarding their pernicious impact on civil liberties. Besides long-standing concerns about frivolous “public interest” litigation, there are increasing doubts about the Court’s capacity to adequately deal with the complex policy and technical details underlying some of these cases. Moreover, in the recent past, some sitting justices have themselves questioned the efficacy and legitimacy of so-called “judicial activism”.
Even as it wandered into areas outside its traditional sphere, the Court has remained surprisingly aloof from certain important national issues. A notable example is the language question. Ironically, political agitations against Hindi imposition, not the judicial process, ensured that English could continue as an official language, even while the Court was the only national institution to exclusively use it. Furthermore, as the Dinakaran episode and the judges’ assets controversy demonstrate, the judiciary’s commitment to transparency and accountability is not beyond reproach.
Pillar of democracy
Despite these quibbles, we can look back with pride and satisfaction at the Court’s overall role and record. Through its landmark decisions and liberal jurisprudence, the Court has considerably strengthened our democratic and pluralistic foundations and commitment to the rule of law. On account of its seemingly apolitical agenda and broad all-India appeal, the Court has fostered a distinct sense of “constitutional patriotism”, which Jurgen Habermas, the German philosopher, argues must displace ethnic nationalism as the binding glue of a nation. There are few, if any, other constitutional courts that have contributed to strengthening their countries’ national unity in this manner.