Supreme Court is not a site for political battles

In the Indian liberal conception and practice of politics, the Supreme Court is a countervailing power to the Executive. In this conception, the Supreme Court is not just an institution to be petitioned to check the excesses of the State but also a site of politics, a way to tilt the scales in an ongoing normative contest and direct State action. This tendency to use the Supreme Court to fight political battles is evident not just in a slew of public interest litigations (PILs) but also in writ petitions concerning issues that are best litigated in the court of public opinion in a democracy.

In fact, taking such issues to the court is rife with risk for opposition political actors, especially in a landscape with excessive consolidation of political power in the ruling party. The Supreme Court’s recent majority judgement upholding the legality of demonetisation is a recent example. This was made evident by the BJP’s political resolution in its recent national executive meeting which built on some judgements that have gone in favour of the government to conclude that the “negative campaign” and “personalised attacks” against Prime Minister Narendra Modi by the Opposition have been “unmasked” and set aside by the courts.

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However, it is worth speculating about the counterfactual: What would have happened if the court had unanimously declared demonetisation illegal? Not much. This is not because it’s been six years since demonetisation and that the issue itself is now moot but that the court’s order would not have, and could not have, led to political accountability.

Neither could the Opposition have used the court order to bring a no-confidence motion against the government, nor would the order have led to greater assertion by other independent institutions in the face of a strong Executive in the absence of specific finding of culpability for dereliction of duty and liability of individuals concerned. What then would such an order have achieved other than being a talking point in the Opposition’s political strategy, its salience contingent on how much it resonated with the public?

On the other hand, taking the government to court divests political actors of their primary jurisdiction over public opinion. Once the Supreme Court upholds some government decision, it is difficult to challenge the consequent veneer of legitimacy without muddling the issue by simultaneously impugning the integrity of the court. In the current political context, this drama in three acts has repeated itself many times. Act 1: There is a potent political issue. Act 2: Someone in the larger Opposition space takes the issue to court. Act 3: The political issue loses its potency the moment the Supreme Court passes an adverse order (for the petitioner). This speaks, too, about the differential impact of taking political issues to the court on the government and on the Opposition: Supreme Court upholding Executive action helps the Executive consolidate power through increased legitimacy while simultaneously depleting the political potency of the issue; whereas an adverse order has no immediate political impact on the government and thus has little upside for the Opposition.

The inadvisability of taking political issues to the court extends to questions pertaining to societal norms as well. Using the court to ram one particular perspective (however evolved) without developing wider political consensus can often backfire. In the United States, the conservative majority Supreme Court overturned abortion rights in a landmark conservative victory. However, the decision became a major voting issue leading to a record-breaking performance by the Democrats in midterm elections.

This indicates that in a democracy, mainstream public opinion will ultimately find a way of asserting itself, even if with a lag. In India, there has been a larger reliance on intermediary and gatekeeping institutions to impose liberal values on society without supporting political mobilisation or political capital. This has contributed in some measure to the charge of elite disconnect against liberals. We are seeing a similar replay of politics via the Supreme Court on issues related to gender norms and LGBTQ rights such as same-sex marriage. There is no doubt that these are important issues but that is precisely why they require a wider dialogue in society, instead of attempting to extract favourable judgements from the Supreme Court without building wider political consensus.

In the face of escalating acrimony between the government and the judiciary, many in the Opposition have spoken of the judiciary as the last bastion of hope against an overweening Executive. This is certainly true for matters related to civil liberties, such as freedom of speech and protection from arbitrary incarceration. However, in a democracy -- however imperfect -- the first and last hope are the people, not milords. And the site to settle political battles is the court of public opinion, not the Supreme Court.

At the same time, it will be remiss not to point out that the onslaught against the judiciary by the government goes beyond asserting Executive mandate in a democracy, and instead betrays a desire within the government to relitigate the constitutional framework of Indian democracy itself. By questioning the basic structure doctrine, Vice President Jagadeep Dhankar appears to be batting not for parliament’s sovereignty as an institution but the power of a particular legislative majority at a point in time because successive parliamentary majorities have not called the doctrine into question. Continuing in this vein will indeed beg the question, “are we a democratic nation?”

(The writer is Executive Director, Future of India Foundation)