Those of us who follow developments in constitutional courts suffered a high-intensity shock on January 12, when four senior judges of the Supreme Court of India walked out of the sequestered environs of the court and exercised their fundamental right to dissent at a press conference. Their collective statement was simple, free of any ambiguities and easy to grasp by anyone who cared to hear. As an ordinary citizen who does not professionally inhabit either courtrooms or the media, what are the questions this event raises for me? And this is not really about the protocols of right and wrong in the act of judicial disclosure, but what connections the disclosure signals to me between courts, politics and citizenship.
The starting point, and one of immense significance, is that in speaking out and speaking truth to power (certainly placing their own interests – personal and professional – at risk), the four judges were dismantling the fundamental architecture that contained (and protected) the judiciary and placed it outside constitutional scrutiny till that point. So it is a significant and historic break with the past – and a necessary one too.
While administering the constitution and being its custodian, the constitutional judiciary has enjoyed the privilege of exception from the norms that govern the larger citizenry in relation to the constitution. While this is invisible at all times, when an “unprecedented” crisis precipitates, the rupture of this exceptionalism is the biggest shock. But it is necessary – not just ‘to repay a debt to the nation’ (Justice Gogoi) or to save themselves the future accusation that they have ‘sold their souls’ (Justice Chelameswar), but to democratise the institutions of constitutional courts and to open the doors to a possibility of a more egalitarian constitutional culture, in the true spirit of the Preamble: “We the People of India… do hereby Adopt, Enact and Give to ourselves this Constitution.”
Extending this, we could also read this gesture as an assertion that there is no relationship of superiority or inferiority between judges inter se (not just within the Supreme Court but at all levels, hierarchies of jurisdiction notwithstanding) and between judges and lay citizens. Judges are only the first among equals in this country.
Also read: An Honourable Disagreement Within India’s Highest Court
The recent judgment of the Supreme Court of India in K.S. Puttaswamy vs Union of India provided us with a renewed sensibility of dignity, dissent and speech – also of the constitutional value of silences in the constitutional scheme. One of the judges speaking to the press on January 12 – Justice J. Chelameswar – was an author of this judgment. In speaking of statute, and the constitution in particular, he observes forcefully that “Implications are logical extensions of stipulations in the express language of the statute and arise only when a statute is silent on certain aspects. Implications are the product of the interpretative process, of silences of a Statute… The implications arising from the scheme of the Constitution are ‘Constitution’s dark matter’ and are as important as the express stipulations in its text” (para 12).
In the absence of any specification or anticipation of the situations leading up to the event of January 12 within the constitutional scheme, the only course open before the four judges was to plumb the depths of their knowledge on the “four corners” of the constitution, and unearth the embedded “dark matter” that is implicit in and belongs within the boundaries drawn by these four corners. In doing this, they redraw the boundaries of courts, by removing the judiciary from a sequestered existence above scrutiny, bringing citizens into the sphere of judicial accountability in seminal ways. How long and how well we will be able to remain in deliberative dialogue is, of course, a big question – especially since the dominant environment seems to be one that is forcing a closing of ranks in the legal fraternity.
A second point of immense relevance in the privacy judgment of the Supreme Court is Justice R.F. Nariman’s observations on the Three Great Dissents. He begins his discussion on the dissents with a quotation from Charles Evans Hughes before he became the chief justice of the US: “A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed…..” The dissents he speaks of are spread out 12-14 years apart: Justice Fazl Ali in AK Gopalan vs State of Madras, 1950, Justice Subba Rao in Kharak Singh vs State of Uttar Pradesh, 1962 and Justice H.R. Khanna in ADM Jabalpur vs Shivakant Shukla, 1976. In discussing these cases at length, Justice Nariman observes that at a time when the Supreme Court of India construed Article 21 rather narrowly, “there were Judges who had vision and dissented from their colleagues” (para 18) with foresight “that simply takes our breath away” (para 21). Justice D.Y. Chandrachud is even more vocal in his celebration of dissent and his castigation of the majority view: “The view taken by Justice Khanna must be accepted, and accepted with reverence for the strength of its thoughts and the courage of its convictions” (para 120). And further, “When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been…ADM Jabalpur is …overruled” (para 121).
Also read: For the Supreme Court Judges to Go Public Is Unsettling, but They Were Left with No Option
The celebratory reinstatement of judicial dissent on points of law may be productively extended to dissent on points of administration of courts and procedure. How can one be good and the other bad? Substantively, they speak to a space enveloped by the “four corners of the constitution”. Nor may it be asserted, as it has been, that 21 judges have not spoken. Dissent has always been in a minority of one. And history – in the voice of the constitution bench of this same court – has held aloft that single expression as the only correct one, against the long rule of the majority. A simple principle of political life of the citizenry applies to courtrooms, too.
Finally, on the question of politics. It is naïve to believe that the national government has chosen ‘not to interfere’ by remaining silent. Absence of speech acts may not be presumed merely because they are not public or expressly stated. This situation is a direct consequence of two fault lines. The first is the arbitrariness in the administrative functions of courts which have had a relatively long and troubled history in India. The second, that in fact feeds on the first, is the brazen, intimidating interference of government in the business of the court, eroding thereby the fundamental principles of the independence of the judiciary. Judge Loya is at the centre of this debate and its tipping point. Not a by-product. And the case of Judge Loya together with this Great Dissent by four sitting judges of the Supreme Court is a telling comment on the imperiled status of the rights to dignity, life and liberty of the entire judiciary – from the magistracy to the apex court – core values asserted by the Privacy bench.
Kalpana Kannabiran is professor and director, Council for Social Development, Hyderabad.