By outlawing Salwa Judum, the Supreme Court performed its fundamental duty by the Constitution and set the issues in a rich, rights-based framework.

In the 1970s, the Supreme Court of India was called upon to decide the constitutionality of Excise Rules that allowed the State of Punjab to regulate the number of days, even hours, when liquor could be sold.

In a judgment peppered with literary references, ranging from Thomas Bacon to Bernard Shaw, the court considered the adverse effects of alcoholism and ruled in favour of the State. “The statutory scheme of the Act is not merely fiscal but also designed to regulate and reduce [the] alcoholic habit,” the court wrote, rather provocatively. But the verdict, delivered by one of the most eloquent judges to grace the Bench, was neither an indictment against drinking nor a call for total prohibition. The court intended to situate the case in its socio-economic context, and embellish the legal conclusions with references to literature and even popular culture.

This is no unusual practice: some of the most celebrated judgments in India and in other countries have been richly endowed with observations from sociological studies, political treatises and economic surveys. The most powerful constitutional courts in the world, like those in India, South Africa and the United States, have often used allusions to support landmark decisions and ground them in a rights-based framework.

Therefore, it must not come as a surprise that the Supreme Court's recent decisions in the Salwa Judum, Greater Noida land acquisition and black money matters have been infused with a liberal dose of such ingredients. Nonetheless, the Supreme Court has received flak for its observations in these cases for being “simplistic,” “too sweeping,” and rather ironically, “judgmental.” While the rhetoric has certainly soared in these decisions, to suggest that the court's remarks in these cases are tantamount to judicial overreach is ridiculous and far-fetched.

To be sure, the Supreme Court in these verdicts has neither chastised the “neoliberal” policies of the state nor prescribed a course correction. It has merely expressed displeasure over the damaging consequences of these policies, which often result in the deprivation of constitutionally guaranteed rights. The same court that now finds itself in the dock for ideological overtures has in the past quoted Adam Smith with approval, even endorsing the free market economy.

But to construe these observations as affiliation towards a particular ideology or policy is incorrect. If the words of Joseph Conrad and Joseph Stiglitz have found their way into these judgments, it is only to underscore the point that the state's so-called “growth-oriented” policies have led to a gradual erosion of fundamental rights. A remedy to this situation is certainly the business of the judiciary.

In Nandini Sundar, the court found that the Chhattisgarh government exercised arbitrarily, and abused its power under, the Police Act to create a militia. By outlawing Salwa Judum, the Supreme Court not only performed its fundamental duty in checking executive power but also upheld the rights of civilians. In Ram Jethmalani, the court found the state wanting in its measures to curb the exodus of black money. As with the 2002 Gujarat riots, the Supreme Court was well within its constitutionally defined parameters to appoint a Special Investigation Team when the administrative machinery had been callous or complicit. In Greater Noida Industrial Development Authority, the court quashed hasty land acquisition by the Uttar Pradesh government that violated due process. In addition to upholding the rights of farmers to their land, the court condemned the unjust enrichment of the real estate lobby facilitated through skewed policies.

To arrive at these conclusions, the court cannot, and should not, rely solely on textual interpretations of the law. The Constitution is an organic document that operates not in isolation, but in tune with the lived realities of people. As the custodian of the Constitution, it is the duty of the Supreme Court not only to invalidate any arbitrary actions of the state but also to remind the government that its policies cannot undercut guaranteed rights. The observations of the court, or obiter dicta, are by no means binding on the government, but they often serve as a compass set towards an administrative policy that is in tune with the ideals of the Constitution.

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