Two Supreme Courts, two imperfect democracies

The two Supreme Courts of the two largest democratic polities in the world were both in the news this week. The United States Supreme Court overturned a fifty-year-old precedent that had read the right to privacy — and thereby to, among other things, abortion — into that country’s antiquated and impossible-to-amend constitution.

The Supreme Court of India, meanwhile, put itself right in the middle of the most controversial aspects of contemporary Indian politics in at least two different ways. While dismissing a case related to the 2002 riots in Gujarat, the Court’s judgment was worded such that some, perhaps incorrectly, interpreted it as a suggestion that activists involved in the case should be arrested. Certainly, the Anti-Terrorist Squad seemed to think they had been so instructed, and the activists were duly arrested. Former Justice Madan B Lokur has written that it could not be that the Court directed the activists’ arrests, since they were “not really recognised as a party to the proceedings”, were “not heard”, and had their “liberty taken away unilaterally and arbitrarily.

And then, in a judgment that may be considered to be of almost diametrically opposite political import, the Court refused to club various different First Information Reports, filed against the former Bharatiya Janata Party spokesperson Nupur Sharma for supposedly hurting religious sentiments, into a single case. The Court further said she was solely responsible for riots following publicity of her remarks, saying her “loose tongue” had “set the nation on fire”. Meanwhile, former Justice Deepak Gupta told the journalist Karan Thapar that the courts were ignoring the rights of another individual peripherally connected to this controversy, the fact-checker Mohammed Zubair, who was arrested under an apparently dubious pretext.

Few of us are competent to properly analyse the jurisprudence behind these two different judgments. This columnist certainly does not intend to do so.

However, all of us can clearly see the clear difference between the public reaction and analysis when the US Supreme Court wades into a political maelstrom and when the Indian Supreme Court does so.

The judgment of the US Supreme Court on abortion rights was not only leaked in advance — which is hardly a good thing — but has also been subjected to the minutest scrutiny and to fair and unfair criticism. It has been linked explicitly to the political leanings of the judges, to their statements during their confirmation hearings, and to the broader political structure within which they were nominated and confirmed. Without compromising the actual power of the Court and the judicial branch in general, some political forces within the United States are calculating how to reverse this latest decision within the constraints of the constitution, and how to ensure that the Court better reflects majority sentiment in this issue. Other political forces are congratulating themselves on a long and explicitly political campaign to reverse past “liberal” rulings.

Either way, it is clear that the US Supreme Court, like all institutions in a democratic state, lies within the broader scope of democratic accountability — not through any individual election, but over multiple elections and even generations.

The Indian Supreme Court, for various reasons, does not seem to lie within the scope of this accountability. Good faith efforts have been made by all sides in the past to find a mechanism by which judicial appointments, say, can both preserve independence and also re-introduce accountability. These efforts have so far failed, although some workable ideas continue to be advocated by experts.

One consequence of this absence of accountability is that the actions of our Supreme Court are not exactly predictable to the layman. Another is that linkages, if any, between the judicial and constitutional choices of the Court and the broader political climate in the country cannot be and are not drawn. As opposed to the situation in other democratic countries, therefore, the regular Indian is left wondering if there is any way within our liberal democratic constitution to secure a legal framework that better reflects their own view of their rights. As a consequence, inchoate anger against the Court is growing, which dangerously undermines its authority and its own future room to manoeuvre.

It is not my contention that we in India should replicate all aspects of other judicial systems — and definitely not that of the US, which has clear and visible flaws.

But it may be important, if respect for the law and the judicial process in India is to be enhanced, for our Supreme Court to re-examine how it can subject itself to greater accountability and its judgments to analysis.