Supreme Settlements: Notes from the Supreme Court of India

While it is indeed an architecture of authority, who does the Supreme Court exert power over?

My first day at the Supreme Court coincided with the day it reopened after the summer break in July 2023. I had been to the Court before but this was the first time I was there as a practitioner- to assist on a live case. On December 15, the Court broke for its annual winter vacation. It’s been an eventful six months at the Court.

When you look back on Court days, one day seems indistinguishable from the other (which may be attributable to the humdrum nature of our work). It was a September afternoon, or maybe October, I am not sure, when, like many other days, my colleague and I waited for our turn in the Chief Justice’s Court. As we marvelled together at the grandeur of architecture of the courtroom, my colleague said something seemingly profound: The courtroom, with all its constituents, is designed to intimidate.

While it may be true for courts in general, the Chief Justices’s court is an ideal specimen of an architecture of authority- its high ceiling, old suspended fans, tall walls with paintings of luminaries of yore and regal furniture work together to inspire awe. One does not need a training in semiotics to infer that the purpose is to fill the entrant with reverential fear: once you are inside the courtroom, there is no option but to submit to its structure.

The Parliament and the Court

As I write this, the lower house of our Parliament has suspended 95 of its opposition members, even as it ‘debates’ and considers for passing three bills which seek to substitute the criminal law investigation and adjudication regime in India. There’s a separate bill listed for consideration which, amongst other things, ousts the Chief Justice of India from the selection committee tasked with appointing the Chief Election Commissioner of India, and replaces him with a Central Government nominee. The bill is prima facie in the teeth of a verdict of a Constitution Bench of the Supreme Court, which authoritatively ruled that the Election Commission must be kept free from executive interference. This is not the first time this year, however, that the Parliament has legislated to overturn a Constitution Bench judgment of the Supreme Court- in August, the Parliament passed a law which allows the Central Government to wrest complete control over ‘services’ and all local authorities of the NCT of Delhi from the elected government of Delhi. The Supreme Court is yet to adjudicate on the validity of the said law.

Unlike the scheme in the UK, the Indian Constitution does not envisage an absolute supremacy of the Parliament: In India, the Constitution reigns supreme, and the Supreme Court is its final interpreter and arbiter. This makes the Supreme Court an all-powerful institution. But the recent occurrences in the Indian polity beg the question: who does the Supreme Court exercise its powers on?

Settlement over Review

In the current winter session of the Parliament, a total of 141 opposition MPs stand suspended- 46 of these MPs are from the upper house (Rajya Sabha) in which the States of India are represented. While majority of the members suffer suspension till the end of the current session, suspension of some of the MPs has been made subject to the outcome of privilege proceedings initiated against them. Since there are no rigid timelines as to the completion of these proceedings, their suspension is, in effect, indefinite. The extant Lok Sabha/Rajya Sabha rules do not envisage such indefinite suspension- the provisions categorically provide that suspension cannot extend beyond the remainder of the session. This position has also been affirmed in a 3-Judge Bench decision of the Supreme Court pronounced in January 2022.

The indefinite suspension, therefore, is substantively illegal and liable to be set aside by a constitutional court. Constitutional logic dictates that if these MPs were to approach the apex Court, the Supreme Court would, without taking much time, strike down such patently illegal suspensions. Except, only recently, the Supreme Court had an opportunity to strike down one such illegal suspension, but it refused to do so.

In August, the Rajya Sabha indefinitely suspended Raghav Chadha, the AAP MP from Punjab, from the services of the Rajya Sabha. As one of the advocates who represented Mr Chadha before the Supreme Court, I would refrain from commenting on the merits of the case: this commentary is confined to publicly reported facts. During one of the hearings in the case, the Chief Justice expressed concerns over Mr Chadha’s indefinite suspension and its impact on the constituency he represents. The concern, however, was not recorded in the written record of proceedings of the day. In the subsequent proceedings, the Court refused to adjudicate the case on merits; instead, it played the role of a mediator and took the route of an ‘amicable resolution’: Mr Chadha was directed to place an unconditional apology before the Chairperson of the House, who was to take a sympathetic view having ‘due regard to all the facts and circumstances’. Mr Chadha’s suspension was ultimately revoked and he found himself back in the Rajya Sabha when its winter session commenced earlier this month.

In hindsight, one wonders if an authoritative pronouncement by the Court in Mr Chadha’s case would have dissuaded the Parliament from effecting these current set of illegal suspensions. When a constitutional court refuses to review a potentially unconstitutional action, it may very well embolden the powerful to partake in more constitutional excesses. The current Chairperson of the Rajya Sabha has routinely maintained that Courts cannot intervene in the affairs of the Parliament. The Court’s hesitance in striking down grossly illegal parliamentary resolutions echoes the sentiments of the Chairperson.

Courts Jesters

As an advocate practising at the Court which regularly abdicates its most essential function of judicial review, you are bound to question, every now and then, the uses of your work. Are the powers of the Supreme Court only reserved for the weak? Does it operate to exercise authority only over poorly placed litigants who have no option but to submit? What do we do at a constitutional court which relies on non-binding oral assurances of Government pleaders to look away from the denial of basic civil and political rights to its population?

Michael Sfard, the human rights lawyer who defends the rights of Palestinians before Israeli courts, captures this dilemma quite succinctly in the preface of his book The Wall and the Gate: Israel, Palestine and the Legal Battle for Human Rights:

As a human rights lawyer representing people living under occupation whose civil rights have been suspended for fifty years, does my work make any difference? Does it in some cases even cause harm? Is it possible, in this sort of context, to bring real and significant social change through legal advocacy? Or does the fundamental nature of the judiciary prevent it from serving as an engine for change in certain situations? Can such change only happen outside the courtroom? And worse: Am I a pawn in the greatest swindle of the Israeli occupation, just passing its half-century mark, by helping to prop up the illusion of a regime that has mechanisms and laws in place to prevent arbitrary acts, contain state violence, and thwart injustice?

On most days, I have felt like a jester at the Court, dressed in a costume in a theatre with consequences, convincing myself and my clients that in a future more near than distant, some sort of justice awaits them. We are the wise fools of the middle ages, the entertainers who perform everyday at the mercy of the court; the astute, skilled Court jesters.