When the Supreme Court's Vista of the Law is Clouded By Great Expectations

In a recent hearing in the Central Vista case, the court suggested that its decision not to grant a stay on construction was based on expectations rather than the law.

Often referred to as the most powerful court in the world, the Supreme Court of India sometimes acts in mysterious ways. The most recent instance was on December 7, 2020, during a hearing in Rajeev Suri vs Union of India & others. The case pertained to the ‘Redevelopment of the Central Vista’.

This case has been going on since March 2020 and several hearings have been held. The order after the last hearing on November 5, 2020, said, “Heard counsel for the parties at length. Hearing concluded. Judgment reserved. Parties are free to file additional written notes by 16th November,2020.”

One month after that hearing, on December 5, the speaker of the Lok Sabha announced that the prime minister will lay the foundation stone of the new parliament building on December 10. This announcement seems to have irked the Supreme Court, and it called for a suo motu hearing “in view of certain developments”.

Though the order issued after the December 7 hearing merely records that “the solicitor general stated that there will be no construction activity of any nature on the concerned site(s) nor demolition of any structure will be done, including the further trans-location of tree(s) will be kept in abeyance, until the pronouncement of judgment in all these cases”, several reports in the media captured the curious exchanges which took place during the hearing. Some of the statements made by the bench during the hearing, as quoted in the media, are given below:

We never thought you will go ahead so aggressively with construction. The fact that there is no stay does not mean you can go ahead with everything.”

We have shown deference to you and expected that you will act in a prudent manner. The same deference should be shown to the court and there should be no demolition or construction.”

“We thought we are dealing with a prudent litigant and deference will be shown. Just because there is no stay it does not mean that you can go ahead with everything,” a visibly upset Justice A.M. Khanwilkar told solicitor general Tushar Mehta.

Just because there is no stay that does not mean you can start construction. We did not pass any clear stay order because we thought you are a prudent litigant, and you will show deference to the court. The news items in the public domain show you are starting construction.”

Each of these statements creates confusion about the working of the court. For example, what exactly do the justices mean when they say, “We never thought you will go ahead so aggressively with construction”? Do benches in the apex court make decisions based on what they ‘think’ the litigants will do? The confusion becomes compounded when this is combined with the next statement: “The fact that there is no stay does not mean you can go ahead with everything.” It is not possible to figure out what else can ‘no stay’ mean other than that there is nothing preventing one from doing whatever one wants.

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It is true that courts, following the doctrine of ‘presumption of constitutionality of the law’, generally avoid granting a stay against the government. However, this is not a case of a law or legislation but an executive action, so strictly speaking the doctrine of ‘presumption of constitutionality of the law’ should not apply in this case. Moreover, the petitioner – who had apprehensions of speedy government activity creating ‘facts on the ground’ which would be hard to reverse later – had specifically requested a stay. Therefore, the ‘expectation’ of the court that the Union of India would not do anything, even when there was no stay, was quite unrealistic.

The other statements quoted above suggest the court expected ‘deference’ from the government for the deference it had shown.  The important questions that this raises are:

  • Should the apex court be deferential to any litigant? Though the ‘executive’ is one of the three ‘pillars’ or ‘organs’ of the ‘state’, should the court treat it differently from what might be called an ‘ordinary’ citizen-litigator? The answer is contained in Article 14 of the constitution, the right to equality, which says, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
  • It is understandable that the court should expect those appearing before it to be deferential, but is it appropriate for the court to expect deference in return for deference?
  • Is it appropriate for the court to classify litigants as ‘prudent’ or otherwise, and seemingly, by its own admission, deal with them differently? Where is the right to equality in that?
  • Is the court justified in having different expectations from different types of litigants, such as prudent and non-prudent?

The key issue that might hold a clue to the court’s behaviour seems to be ‘expectations’:

  • It expects the government to be a prudent litigant.
  • It expects deference in return of deference.
  • It expects the litigant (the government) to somehow figure out that even though the court has not granted a stay, it actually does not want it to disturb the status quo.

With all due respect and deference to the Supreme Court, one wonders if the court should work on the basis of its expectations, or on the basis of the facts and circumstances of the case before it, and the law in force.

Jagdeep S. Chhokar is a former professor, dean and director in-charge of the Indian Institute of Management, Ahmedabad (IIM-A). Views are personal.