The compromise of India’s democratic institutions in recent years has been well documented in the national and international media. Since this threat to democracy has come from the executive, people have naturally looked to the judiciary to put the actions of the government under constitutional scrutiny. The characteristic function of a constitutional court is to be counter-majoritarian, so that it ensures the government treats all citizens fairly and not only those who voted it into power. The legitimacy of the courts is derived from independent and effective review of the state’s actions. However, over the last few years, the Supreme Court has failed in performing this primary function.
The conduct of the apex court is not an aberration or an unintended mistake, but follows a pattern in which certain tactics are used repeatedly to evade constitutional review of the government’s actions. Three distinct and recurrent tactics of evasion can be identified. First, when the court is called upon to decide on a matter, it refuses to give orders either way and chooses an indefinite adjournment. Second, the court defers to the executive when asked to answer legal questions, leaving it to decide on the validity of its own actions. Third, the court accepts the executive’s version of events unquestioningly and closes cases without assigning substantial reasons.
Under the first tactic, significant legal issues are considered to have no urgency. They are postponed even at the cost of lives. In November 2016, the central government announced the demonetisation of Rs 500 and Rs 1,000 currency notes. The move was soon challenged in the Supreme Court, but the court did not stay the government’s decision. The bench hearing the case referred nine questions to a constitution bench—a bench of at least five judges set up to decide on substantial questions regarding the interpretation of the Constitution. It has been over three years since then, but the matter has still not been heard. In early 2017, the advocate Alok Prasanna Kumar cautioned: “This time, from the looks of it, almost all the demonetised currency will have returned to the system well before the final deadline of March 31, 2017, rendering any judgment that the Supreme Court may deliver on the legality of the exercise entirely pointless.” This is exactly what happened. Technically, the court did not decide on the case either way, but the government clearly won, since its decision was fully implemented.
The court has used the same strategy in the legal challenge against the Citizenship (Amendment) Act. Petitioners questioned the constitutionality of the statute and sought an interim stay order. For granting an interim order, three factors need to be considered. The court needs to determine whether the complaint is plausible enough to be heard at length; it then needs to determine who is favoured by the status quo; and, finally, it must consider if there would be irreparable consequences from not granting an interim order.