Insights into Editorial: The supreme failure

Context:

American lawyer James M. Beck described the U.S. Supreme Court as a lighthouse whose gracious rays of justice and liberty light up the troubled surface of the water, making America a free and strong nation.

1. Jagannadha Rao, a former Indian Supreme Court judge, citing Beck, said that what is true of the American Supreme Court is equally true of the Indian Supreme Court.

In the 73rd year of our Republic, it is time to put this belief to test especially in the wake of mounting majoritarianism and surging ethnocultural nationalism.

Indian Supreme Court derives its power from the Constitution of India:

1. The Constitution of India promises to secure to all its citizens, justice – social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and opportunity; and to promote among them all, fraternity, assuring the dignity of the individual.
2. These are the fundamental goals of our constitution. We must always remember that Constitution of India is a gift from We the People of India to ourselves as citizens – past, present and the future.
3. In its celebrated Kesavananda Bharati judgment, the Supreme Court declared these goals to be the basic structure of our constitution.
4. Even while creating the three organs of the state – legislature, executive and judiciary, the constitutional framers defined their powers and imposed limitations on them.

Importance of the Supreme Court in India:

In the Constitution of India, part 5, chapter 6 deals with the power, function, appointment, retirement, jurisdiction, etc. from Article 124 to Article 147 of the Supreme Court.

The followings are the importance of the establishment of the Supreme Court:

1) The Supreme Court is the highest appeal court that is also known as the apex court of India and even the last resort, where the citizens of India can seek justice if they are not satisfied with the judgment of the High court.

2) The citizens of India, as per Article 32 of the Constitution, can even directly sort for remedy through writs if their fundamental rights are violated.

3) The Supreme Court has Judicial Review power that is being vested through Article 13 of the Constitution, which means the Supreme Court has the power to strike down any legislation and executive action if such acts are found to be inconsistent with the Constitution of India.

In the last few years, the Indian Supreme Court has delivered some judgments of far-reaching consequence.

It declared the right to privacy a fundamental right; decriminalised consensual sexual conduct between adults of the same sex; recognised transgender persons as the third gender; and outlawed triple talaq.

These decisions shore up the belief in republican values like liberty and equality reified in our Constitution.

Supreme Court is custodian of the equality: Constitutional duty:

1. Granville Austin, a distinguished constitutional scholar, said, the Supreme Court is custodian of the equality under the law that lies at the heart of the country’s constitutional democracy.
2. Unless the Court strives in every possible way to assure that the Constitution, the law, applies fairly to all citizens, the Court cannot be said to have fulfilled its custodial responsibility.
3. By abjectly failing to decide key constitutional cases in a time-bound manner, the Supreme Court has not acted as the “sentinel on the qui vive”.
4. The Court should perform its constitutional duty of being a formidable counterforce to brute majoritarianism.
5. The power of judicial review that the Chief Justice of India, N.V. Ramana, calls as critical to democracy should be exercised assiduously. Or else, India’s hard-fought constitutional democracy would be in grave peril.

Some of the important cases gathering dust in the Supreme Court are as follows:

1. First, a deluge of petitions was filed before the Supreme Court challenging the constitutionality of the Citizenship (Amendment) Act, 2019, that provides non-Muslim communities from Bangladesh, Pakistan, and Afghanistan a fast-track route to Indian citizenship.
   1. More than two years later, the matter continues to languish in the apex court.
2. Second, innumerable petitions have been filed challenging the Presidential Order of August 5, 2019 that effectually diluted Article 370 of the Constitution and split Jammu and Kashmir into two Union Territories.
   1. To date, the court has done precious little to decide this vexed question of law.
3. Third, petitions challenging the constitutionality of the Constitution(One Hundred and Third Amendment)Act,2019 that provides reservations in public educational institutions and government jobs for economically weaker sections are also languishing in the Supreme Court.
   1. It is shocking that the case has not been heard since August 5, 2020, while the law has already been implemented.
4. Fourth, a momentous case known as Vivek Narayan Sharma v. Union of India is in the Supreme Court for more than five years.
   1. This case relates to the legality of demonetisation of all ₹500 and ₹1,000 notes aimed at curbing black money.
   2. It was the most audacious economic experiment in the life of the Indian republic that went horribly wrong because more than 99% of the cash came back into the banking system, according to the Reserve Bank of India.
   3. Appallingly, the Supreme Court hasn’t heard this case since September 2, 2019.
5. Fifth, the Supreme Court has failed to accord proper hearing in the last four years to the constitutional challenge to the electoral bonds scheme.
   1. This scheme strikes at the heart of our polity because anonymous funding of political parties is the root cause of corruption in public life.

Black marks that need rectification:

1. Notwithstanding these bright spots, there are several black marks on the Supreme Court’s record.
2. The Vidhi Centre for Legal Policy has developed an excellent comprehensive tracker of all the pending cases before the five-judge, seven-judge, and nine-judge constitution benches of the Supreme Court.
3. According to this tracker, there are 25 main cases pending before the five-judge constitution bench and five cases each pending before the seven-judge and nine-judge benches.
4. These cases relate to significant constitutional and other legal matters that can have serious repercussions on the fundamental rights of ordinary citizens and our core republican values. Related to these main cases, there are more than 500 connected cases.
5. These cases cannot be decided till the legal issues in the main cases before the constitutional benches are addressed.

Conclusion:

The Supreme Court is the highest appealing body in our jurisdiction. With its establishment, justice is being proclaimed by the citizens of India.

The powers that are vested upon the SC are to ensure the fair trial in matters that are about the Constitution of India; hence it also protects the world’s largest democratic state.

The fundamental importance of the independence of the judiciary from Parliament and Executive is therefore vital.

It is charged with the responsibility of ensuring that government policies and actions are not contrary to law and of ensuring that citizen’s legal rights and responsibilities are vindicated or enforced.

It is up to the courts to protect the citizen against arbitrary and unlawful acts of the other arms of Government. Political control by the people is normally only exercised at election time.