The unpredictable winds of the Apex court, time and again, left many of its observers befuddled. The author here argues that the absurdity in the courts new jurisprudence to evade its duties arises from a position of convenience.
“What is the purpose of our existence?”
Either history will impinge some wise and learned thinking behind the Supreme Court’s current jurisprudence or it will term it as an absurd phase. Recent instances (see here and here) point heavily towards the latter but for the sake of our learned and wise apex court of the country, let’s assume, as Vasudev Devadasan states, that the court knows what it’s doing. That would mean, the court knows that rule of law is under threat in the country, which would lead the Supreme Court’s current jurisprudence to be in line with Andras Jakab’s suggestion on what the courts should do in such times; that courts should engage in self-restraint and not practice activism when rule of law is under threat in a country. Many would infer that the silence of the court is in line with these suggestions. Below, I argue why that is misplaced and this phase is, in fact, just absurd.
Evasion as a sub-product of Convenience
In his paper, Andras Jakab suggests that during such times, when rule of law is under serious threat; courts should observe self-restraint and not indulge in activism. On similar lines, interpreting the silence and evasion of the court in recent matters, Vasudev Devadasan states that the court is as bold as the government and the public allow it to be. And that the thought, that courts are counter-majoritarian institutions is flawed. That is why he explains that today’s court is neither willing to expressly compromise its intellectual fidelity to the law nor its necessary relationship with the government—and so it sits on the fence, hoping that nobody will notice. By “sitting on the fence” he refers to judicial evasion. Vasudev although acknowledges that this behaviour doesn’t explain the violation of core legal norms by the court.
Judicial evasion in today’s understanding of the Supreme Court’s actions doesn’t exist independently. The court is also exercising convenience, and hence, when we talk of self-restraint, judicial evasion cannot be taken as an isolated event. I submit that this violation of core legal norms can be understood if we see evasion to be a sub-product of convenience. That is, the major issue that we are observing in the Supreme Court is convenience and evasion is a tool that has been used to achieve it. As long as the judiciary observes evasion, this silence can be inferred to be a way to maintain the rule of law as Andras Jakab argues. But as soon as we observe evasion as a product of convenience, then evasion loses its strengthening value.
What is Convenience?
Convenience refers to the attitude of the court which is marked by conclusions that are arrived at without any legal reasons. Usually, it is the case that politicians do things as per their own convenience which results in criticism of their methods. This (executive) attitude is marked by motives moved forcibly by their own morals and reasoning without significant adherence to any written law and the reason why they do so may also be imputed to ulterior motives or personal gains. The executive can afford this reasoning as it is not bound to give legal reasons; it is in fact not even bound to give public reasons. While all public institutions should give public reasons, they are not mandated to do the same, as it is the judiciary alone which is obliged to give public reason (see here). Also, there lies a difference in the reasons of both of them—the executive reasons might be based on non-legal factors whereas the reasons of a judge ought to be legal.
“To a judicial mind, however, convenience is the antithesis to the subject.”
To a judicial mind, however, convenience is the antithesis to the subject. In a judicial application, convenience refers to the attitude of the court which is marked by conclusions arrived at without any legal reasons. Such as formulation of imprecise doctrines/principles that is based on handpicked notions of the Constitution,(see here) selective choosing of facts which results in a result-oriented approach (here), and evasion. Convenience stems from the fact that the court uses convenient methods simply because it has the discretion to do so. There is no adherence to principles and precedents. The result is that each time, even in basic liberties issues we are left guessing what the court will do now. This behaviour of the court has been seen especially in cases that bear a certain executive interest—selective choosing of facts (Bhima Koregaon case, the Aadhaar case and Rafale Deal case), formulation of doctrines based on self-conception of the constitution (Constitutional Morality in Sabarimala), a fallacy in reason giving, and judicial evasion (Kashmir Petitions, NRC, Sexual Harassment case, CBI vs. CBI, electoral bonds case). Thus, giving room to speculations that the court is leaning heavily in favour of the executive.
Effects of convenience
Convenience has resulted in amnesia of precedents and of reasons. It has further created problematic precedents. When the court violates core legal norms, the court doesn’t just stick to these basic legal norms and actively engages in breaking them. The PIL phase of the court too is remembered for breaking procedural chains. But the aim in that phase was to extend the doors of the court to the needy. Here, the court has broken norms too but to an exactly opposite result—shutting its doors to the needy. While there the court invented a tool that could help it in achieving the aim, here the court has broken all tools to achieve its aim. Hence, here we see a court which is shifting negatively towards activism.
“Convenience has resulted in amnesia of precedents and of reasons.”
It is, by no means, exercising self-restraint, but is actively engaging in negative activism. In the PIL phase, the needy and the helpless were a major influence, while here, the word of the government has been the most influential part of the current jurisprudence (even if they are lies). The court is not exercising self-restraint but is actively engaged in negative activism. Hence, the actions of the court cannot be said to stop the erosion of rule of law in the country. The court might be aware of the erosion of rule of law in the country but it’s doing nothing to contain it; through convenience, it is only furthering that erosion.
A myriad of reasons could be given for the acts of the Supreme Court. A plausible reason could be that, after the judges press conference, the court is well aware of the fact that it resulted in a considerable blemish in public confidence. Hence, it has adjusted its stance to favour the mandate of the people and to thereby ensure public confidence. As the Supreme Court is known to shift its stance according to the government of its time, this view cannot be ruled out completely. However, if we accept that the run has only been for public confidence, then the manner in which the court is doing it should be viewed as appeasement. The court, like the executive, is resorting to appease the public rather than maintain confidence in its institution. But none of the reasons, cover for its current jurisprudence. In 2015, Chintan Chandrachud described the then phase of the Supreme Court as “Panchayti Eclecticism”.
“The court, like the executive, is resorting to appease the public rather than maintain confidence in its institution.”
Convenience in the Supreme Court today, is nothing but an extremely refined version of “panchayti eclecticism”, where the decisions of the Supreme Court are, in addition to precedent, doctrine and established interpretive methods, further detached from reasons and facts. Everything that we considered understood and established by the court stands at a crossroads. More so because of the way the court has allowed this transgression to happen. If before, we had ADM Jabalpur, then this phase of the court should be seen as an arc reactor and ADM Jabalpur, a triple A battery. Consequently, how deep would the future courts bury this jurisprudence?
( The author is a final year student at Dr. RMLNLU, Lucknow. Views expressed are personal.)