POV: BORN AGAIN SUPREME COURT
Last month, the Supreme Court delivered two constitutional bench decisions: declaring triple talaq unconstitutional and recognising an inalienable fundamental right to privacy. These important decisions suggest a potential shift in the role of the Supreme Court in India’s constitutional democracy. But in considering such possibilities, we should begin by retracing the place of the court in independent India’s political and constitutional narrative.
Historically, the Supreme Court embraced an independent and strident counter-majoritarian role in India’s politics from the get-go. The court struck down legislation and executive action moved by the Nehru government and presented itself as the guardian of natural rights—particularly the right to property and the right to do business—to deny political majorities the transformative reform agenda they sought. This precipitated confrontations with Nehru’s government on free speech, land and social reform, and later with the Indira Gandhi regime’s land reform and nationalisation policies. The latter contest led to outright hostility between the judiciary and the political branches, precipitating the Emergency, after which the Supreme Court tepidly climbed down on the landmark habeas corpus and nationalisation cases. Though the court abandoned the natural rights doctrine, it developed a new basic structure doctrine to check majoritarian excess. Simultaneously, it opened up to a wide variety of litigants by easing Special Leave Petition (SLP) rules and institutionalising a form of public interest litigation. These manoeuvres allowed the court to become a court of ‘popular’ justice that could make a claim on the trust and affections of Indians directly, unmediated by political institutions or parties.
The fracture in the Congress system through the early 1990s and the era of coalition governments saw the court grow in stature as a pre-eminent state institution that could entertain all manner of cases and innovate to redress complex social and political problems. This success brought new challenges: first, the swollen case docket of the Supreme Court led to long pendency and the profusion of small benches of one, two or three judges deciding critical constitutional law cases. Secondly, the re-emergence of a majority government that is determined to exercise and stretch its political powers has generated a new political dynamic of low tolerance for court micro-management of policy design and implementation.
The recent decisions by a five- and a ninejudge bench, respectively, suggest that the Supreme Court can innovate again to respond to these new challenges by recasting itself as a Constitutional Court rather than a Court of Appeals. To do this effectively, it must routinely constitute large benches of five judges or more to render decisive opinions on matters of constitutional importance. These opinions should review and settle precedent and develop constitutional interpretation that can guide lower courts, and political actors and citizens. Secondly, by settling large legal questions that have clear precedential value, the court should gradually remove itself from routine decision-making in various review and appeals that it currently entertains via SLPs. Arguably a smaller number of judges could discharge this constitutional court function, thereby mitigating the current crisis over non-appointment of judges.
However, the birth and potential emergence of a new constitutional court model also raises the danger that the Indian Supreme Court may come to resemble the US Supreme Court that transports partisan political disagreements in electoral politics and governance with greater vehemence and distaste to the courtroom. The Indian court can only avoid such ideological polarisation by ensuring that its appointment procedure allows no place for political partisanship as well as by developing an approach to judicial decision-making that replaces the antagonism of our political culture, with a gentler agonistic form of normative and constitutional argument. This approach does not assume that judicial decision-making arrives at a consensus erasing all social and political disagreement. Instead, such a constitutional court will reaffirm that we can disagree with each other and yet develop a community of shared constitutional values.