The observations of the Chief Justice of India (CJI), while refusing to entertain a joint plea by 14 political parties against ‘selective’ targeting of their leaders, raise issues of politico-constitutional importance. The court observed that for it to lay down general guidelines to prevent mischief, which is essentially a legislative function, was a “dangerous proposition”. The observations also provide insight into the court’s approach concerning its judicial review jurisdiction in the framework of a functioning parliamentary democracy.
The court’s reiteration of its remit to hear and decide concrete cases on specific facts brought before it and its refusal to entertain the petition echoes the traditional judicial wisdom articulated in the majority judgment of the US Supreme Court in Laird (1972) – which had cautioned that “allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm” – lending juridical support for the observations of the Chief Justice. It is pertinent to mention however that the Supreme Court’s expansive public interest litigation (PIL) jurisprudence suggests a more dynamic exercise of constitutional power.
Most significant, however, was the Chief Justice’s response to the petitioner’s contention that a skewed application of the law has shrunk the space for dialogue in an uneven playing field. Responding, the Chief Justice observed: “…..When you say that the space for opposition has shrunk, the remedy is in that space. Not Court.”
A perennial judicial dilemma
Viewed from the perspective of the political theory of a democratic state, the comment from the bench correctly suggests that the democratic pathway to power and its distribution to secure a government “checked and balanced against itself” is through a decisive mass mobilisation of the citizenry. The Chief Justice was perhaps echoing Harold Laski’s articulation of democratic power as a product “of conflict of myriad wills” by virtue of which “the wants of men will only secure recognition to the point that they can forcibly articulate” their will in the peoples’ court.
The court’s observations reflect a perennial judicial dilemma of balancing peoples’ expectations of justice against majoritarian impulses and the limitations of institutional non-justiciability. In recent times, the judicial outcome of essentially political disputes that are a subject of intense political contestation has demonstrated the inherent or self-imposed limitations of powerful constitutional courts exercising “splintered political power and responsibility”.
Hopefully, the court’s raison d’etre as a libertarian bulwark against the excesses of state power and its entrenched jurisprudence on human rights will continue to navigate its approach where freedom and liberty of the individual is concerned. Its profound pronouncements over the years, some aberrations notwithstanding, have enriched Indian democracy and reinforced the constitution’s sacrosanct dignitarian promise.
As defender of the constitutional faith, it must ensure that the judgment of the law is no less sacred than the judgment of the voter. Evolving with, and responding to the challenges of our age, the court is expected to reinforce its libertarian jurisprudence and custody of the constitutional principle. It must continue to assert that democratic politics is subject to law, not above it, recognising in cases involving fundamental human rights, “the moral dimension to an action in law” (Ronald Dworkin). Indeed, it is the court’s function to “compel” political discourse to address issues of power in the language of constitutional principles”.
In the premises aforesaid, given the data of prosecutions and incarceration documented in the petition of the Opposition parties, the known instances of prolonged detention of individuals without bail, and the court’s wide jurisdiction to offer a protective umbrella to those seeking the preservation of their liberties and dignities, the case deserved at least a preliminary consideration by the court. This would have been in furtherance of the constitutional conscience and the court’s recent eloquent declaration in Arnab Goswami (2020), that “a deprivation of liberty even for a single day is one too many” and in Siddharth (2021) that the accused cannot be arrested merely because law enables it.
The ultimate measure of the court’s prestige and authority rests on its readiness to vindicate truth and justice at all times and in mirroring the collective aspirations of people sworn to freedom and dignity. In moving forward as keeper of the republican values and interpreter of a ‘living constitution’, it must liberate laws from the ‘dead hand of the past’, and guard itself against subjective moralism and debilitating relativisim.
While it cannot be dismissive of the processes of democratic governance nor aspire to be the nation’s sheriff, the court cannot abnegate its constitutional power to protect the rights of its citizens. (H.R. Khanna, J. in Khanchand (1974) as affirmed in Shayara Bano (2017)). Clearly, the highest court is expected to buttress and bolster barriers against the unfettered exercise of state power in the derogation of human rights.
Given its overall record, the nation can hopefully rest assured that the court will not lend its ‘fingerprints’ on the unjust decisions of governments of the day, while functioning as it must, within the constitutionally delineated bounds. We know that power has reasoned in every age and it is in the wisdom of the wise that enduring answers to some of the vexed questions of our time will be found. The challenge is to nurture and invigorate institutions designed to serve the ideals of the Republic.
Ashwani Kumar is a Senior Advocate and former Union Minister for Law and Justice.