The Supreme Court And Democracy

On May 2014, the defeat of the Indian National Congress led to debates on the future of India’s democracy. Much of it veered on overt political dimensions, such as the coming of a strong reformatory Government while others speculated on the possible effect on secularism. With the Government in place it is policy administration that will define the contribution of this regime. Moving forward the Opposition, the Media and the Courts will be essential in understanding contemporary socioeconomic change.

Writ Jurisdiction and the Political Field

The end of the Lodha court marked an era in which politics was often steered by Judgments on executive and legislative actions of the Government. This period saw the Judiciary make historical decisions via writ jurisdiction provided by our constitution. This jurisdiction under Article 32 provided extraordinary judicial protection of fundamental rights. The constitutional expansion of these rights from individual rights to collective rights was most evident in the post emergency court.

This period has been described by Upendra Baxi in “Supreme Court and Politics” as the coming of the populist court, an era defined by Justice P.N. Bhagwati and Justice Krishna Iyer who through judgments in “Hussaina Khaitoon, Sunil Batra and Fertilizer Kamgar Union etc” expanded the concept of locus standi. These judgments formulated the scope and ambit of “Public Interest Litigation” bringing public interest within the framework of part III rights. Judicial pronouncements via Writ Jurisdiction on questions of law regarding economic and social policy have helped form public opinion in our democracy.

During The final years of the last political regime, the opposition speak was often defined by Public Interest cases which further expanded the reach of public interest and Constitutional morality. A rather philosophical term, “constitutional morality” was invoked by the Supreme Court in the recent case of Manoj Narula. The Court while deciding on whether a person with criminal antecedents can be a member of the cabinet held that though the scheme of the Constitution does not allow for judicial interference it would be preferred on constitutional values that such an appointment is not made.

Criticism on the development story shaped itself after striking down of natural resource allocation in Coal Gate and 2G. The institutional credibility of the establishment was shaken following the striking down of both 6A of DPSP (Subrhamaniun Swamy case) and the unlawful appointment of the CVC (C.V. Thomas case). Judgments delivered during the last leg of the previous establishment had brought “corruption” and “public accountability” to the forefront of national discussion. Supreme Court Judgments on such Public Interest Litigation cases played an important part in the formation of opinion in the Public Sphere.

Public Sphere, Judiciary and the Opposition

Six months prior the national elections of 2014, The Delhi State elections in 2013 were contested in the background of accusations of political corruption and public anxiousness on the issue of Industry- Government nexus. The KG Basin Gas pricing, Unlawful Real Estate dealings and negative CAG reports on financial transactions of the government all of which were sub-judice attracted negative remarks by the Courts. In the face of a weakening economy and increasing judicial scrutiny these issues led to great public furor, Not only judgments but obiter dictas became discussions of national debate.

The State Elections in Delhi saw the Congress virtually obliterated. The manifestos of opposition parties promised the audit of private Power distribution companies while also bringing government contracts with private companies under scrutiny. The Issue of the CAG audit on power distribution companies continues to remain sub judice in the Delhi High court. However of great consequence is the fact that the High court and in appeal the Supreme Court in Association of Telecom case recognized the constitutional right of the CAG to audit private telecom companies. This decision is likely to impact the decision regarding the audit of the power companies. The Delhi High Court famously termed the running of the establishment as a “club government” marked by the ability to censure public scrutiny.

Encouraged, the national elections witnessed the opposition blitzkrieg the establishment. Technology helped political opposition communicate these ideas across the rural and urban landscape of India. The public sphere was contested as those for law and equality for all and those decimating the law and protecting the elite.

That with each scam, FIR, charge sheet and arrest the country grew more cynical of the Ruling administration. India’s economic and social diversity give rise to a whole host of complex issues, However the solution was explained in a term generic and yet all encompassing “clean governance”. The results of course were historical.

Opposition, Supreme Court and Evolving Dissent

The Opposition capitalized on the rhetoric of Political corruption and the important nuances of the Courts Decisions had no place amidst the anger against the incumbent and the delirious support for the opposition, prime examples were the issues of Black Money and Coal Allocation (where interestingly allocations were cancelled across all Governments!). Such issues were sensationalized and caught the public imagination ending the reign of the grand old party. The Current regime however cannot escape the urgent problems of governance ranging from Regulatory uncertainty in Power Sector, and issues pertaining to manufacturing to those of acquisition of land, Education reforms and the ever increasing challenges in Forest Conservation and rising gender crime.

Recently the Supreme Court has reminded our democracy that the jubilance of an election victory has not allowed us to time travel into a utopian land of prosperity. The Chief Justice of India set up a special bench on issues of “social-justice”. This Bench would look into matters of public interest especially regarding issues of the underprivileged, public distribution of food and public health.

The Opposition must realize that it has must respond to new forms of governance and the need is constructive critique. Parliament is the quintessence of democracy and the opposition the voice of dissent. The Government will promote each bill and policy as a step towards progress. If the opposition fails to offer worked out alternatives, we may find the Supreme Court occupying the ‘oppositional’ space in India’s democracy. Is that sustainable?

(Chimni is an Advocate at the Supreme Court and had worked with with the Additional Solicitor General Of India during 2013-14)