THE SC HAS ALMOST MADE BELIEVERS OF US

The Supreme Court can do no wrong. The Supreme Court can get nothing right. The Chief Justice of India is an honourable man. The Chief Justice of India has to explain his actions. This is clearly a case of judicial overreach. Thank God, the Supreme Court decided to step in. The government shouldn’t be allowed to appoint judges.

But who watches the watchmen?

As the 45th Chief Justice of India, Dipak Misra, retires — October 1 is his last day — and as one of the most active sessions of the court, in terms of judgments of significant magnitude and import, ends, an assessment, even if it’s only partial, is in order.

It makes sense to revisit happenings of the past nine months, and judgments, especially those delivered in the past month-and-a-half, to understand the role of the Supreme Court.

For, as evident from the extreme and conflicting statements at the beginning of this column, India’s Supreme Court is like no other at this point in history. Perhaps it is because of where our young democracy is at this point in history, but there are fundamental questions to be resolved, and it is usually up to the Supreme Court to resolve them.

Because these are usually complex issues that go beyond mere points of law, we expect much of our Supreme Court judges. We expect them to be learned and fair, sensitive to matters of faith and belief, yet liberal and progressive in recognising the rights of individuals, and with an ability to see the big picture without losing sight of the small details (and the small man). That we can be proud of some of our Supreme Court judges is as much credit to the men themselves, as it is to the institution. Extraordinary institutions sometimes have that impact even on ordinary men. India’s Supreme Court is an extraordinary institution in a country where there aren’t many.

Things go wrong sometimes, as they do in an all-too-human world driven by all-too-human motives. Sometimes, the Supreme Court gives us wannabe-solomons with a fondness for prose. But sometimes we get lucky. Based on recent judgments — this is the only measure of a court’s greatness — we have been very lucky. It didn’t seem that way as recently as January when, in an unprecedented public performance, four Supreme Court judges aired grievances over the way the Chief Justice was running the court, but recent judgments have gone a long way to erase that memory.

Chanakya will resist the temptation to go into the details of specific judgments, but, in general, what a wonderful bunch of decisions we have witnessed in recent weeks and months.

In at least two instances — the case involving criminalisation of politics and mob lynchings — the Supreme Court had an opportunity to lay down the law, but did not. In the first case, where it was requested to bar politicians with criminal charges against them from contesting in elections, it put the onus on Parliament to make the law, instead choosing to lay down guidelines on labelling and adequate disclosure. In the second, while dealing with instances of horrific mob lynchings, and against a backdrop in which more such were happening, it again laid down procedures and guidelines, but refrained from making a law. Parliament is making one, but the court, perhaps like many of us, believes that existing laws, if implemented and adhered to, are adequate. In both cases, the court had reason, and occasion to overreach, but, rightly, in Chanakya’s opinion, chose not to.

It had similar opportunity for overreach in the case involving activists arrested by the Pune police in a case related to investigations of the violence at Bhima-koregon last year, but chose not to exercise the option.

Yet, where the rights of individuals are concerned, the Supreme Court has not hesitated to amend, read down, or scrap the law. Its judgments on privacy (that it is a fundamental right), Aadhaar (that it be restricted to the government’s welfare schemes, and that there can be no disclosure in the interests of “national security”), Section 377 (which barred “unnatural” sex, thereby making anyone in a homosexual relationship a criminal in the eyes of the law), and adultery (where the old law was one-sided) are evidence of that.

Nor has it hesitated to tread where courts usually fear to — in matters of faith. Last year, it held that instant triple talaq is unconstitutional. A few days ago, it said women of all ages could visit the Sabarimala temple, overturning a centuries-old restriction on women between the ages of 10 and 50 from entering the temple.

Some of the court’s more important judgments have been unanimously hailed. Others have been welcomed by some and criticised by others. Interestingly, those welcoming some judgments are the very people criticising some others. This is a clear indication that the court has not taken sides or played favourites.

The State may believe the court could have done a bit more to ease its functioning; activists may want the court to have been even more progressive and liberal than it has been; and those of the faith may have wished the court had stayed out of matters of faith, but these very quibbles stand testimony to the performance of the court.

It has almost made believers of us.