The supreme failure

By failing to decide key constitutional cases in a timely way, the apex court has not acted as the ‘sentinel on the qui vive’

Published - February 01, 2022 12:15 am IST

A view of the Supreme Court of India. File

A view of the Supreme Court of India. File

American lawyer James M. Beck described the U.S. Supreme Court as a lighthouse whose gracious rays of justice and liberty light up the troubled surface of the water, making America a free and strong nation. M. Jagannadha Rao, a former Indian Supreme Court judge, citing Beck, said that what is true of the American Supreme Court is equally true of the Indian Supreme Court. In the 73rd year of our Republic, it is time to put this belief to test especially in the wake of mounting majoritarianism and surging ethnocultural nationalism.

In the last few years, the Indian Supreme Court has delivered some judgments of far-reaching consequence. It declared the right to privacy a fundamental right; decriminalised consensual sexual conduct between adults of the same sex; recognised transgender persons as the third gender; and outlawed triple talaq. These decisions shore up the belief in republican values like liberty and equality reified in our Constitution.

Black marks

Notwithstanding these bright spots, there are several black marks on the Supreme Court’s record. The Vidhi Centre for Legal Policy has developed an excellent comprehensive tracker of all the pending cases before the five-judge, seven-judge, and nine-judge constitution benches of the Supreme Court. According to this tracker, there are 25 main cases pending before the five-judge constitution bench and five cases each pending before the seven-judge and nine-judge benches. These cases relate to significant constitutional and other legal matters that can have serious repercussions on the fundamental rights of ordinary citizens and our core republican values. Related to these main cases, there are more than 500 connected cases. These cases cannot be decided till the legal issues in the main cases before the constitutional benches are addressed. Some of the important cases gathering dust in the Supreme Court are as follows.

First, a deluge of petitions was filed before the Supreme Court challenging the constitutionality of the Citizenship (Amendment) Act, 2019, that provides non-Muslim communities from Bangladesh, Pakistan, and Afghanistan a fast-track route to Indian citizenship. More than two years later, the matter continues to languish in the apex court. Second, innumerable petitions have been filed challenging the Presidential Order of August 5, 2019 that effectually diluted Article 370 of the Constitution and split Jammu and Kashmir into two Union Territories. To date, the court has done precious little to decide this vexed question of law.

Third, petitions challenging the constitutionality of the Constitution(One Hundred and ThirdAmendment)Act,2019 that provides reservations in public educational institutions and government jobs for economically weaker sections are also languishing in the Supreme Court. It is shocking that the case has not been heard since August 5, 2020, while the law has already been implemented.

Fourth, a momentous case known as Vivek Narayan Sharma v. Union of India is in the Supreme Court for more than five years. This case relates to the legality of demonetisation of all ₹500 and ₹1,000 notes aimed at curbing black money. It was the most audacious economic experiment in the life of the Indian republic that went horribly wrong because more than 99% of the cash came back into the banking system, according to the Reserve Bank of India. Appallingly, the Supreme Court hasn’t heard this case since September 2, 2019.

Fifth, the Supreme Court has failed to accord proper hearing in the last four years to the constitutional challenge to the electoral bonds scheme. This scheme strikes at the heart of our polity because anonymous funding of political parties is the root cause of corruption in public life.

Constitutional duty

Granville Austin, a distinguished constitutional scholar, said, “the Supreme Court is …custodian of the equality under the law that lies at the heart of the country’s constitutional democracy. Unless the Court strives in every possible way to assure that the Constitution, the law, applies fairly to all citizens, the Court cannot be said to have fulfilled its custodial responsibility”. By abjectly failing to decide key constitutional cases in a time-bound manner, the Supreme Court has not acted as the “sentinel on the qui vive”. The Court should perform its constitutional duty of being a formidable counterforce to brute majoritarianism. The power of judicial review that the Chief Justice of India, N.V. Ramana, calls as critical to democracy should be exercised assiduously. Or else, India’s hard-fought constitutional democracy would be in grave peril.

Prabhash Ranjan is Professor and Vice Dean, Jindal Global Law School, O P Jindal Global University. Views are personal

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