Two questions that trouble constitutional pundits in all democracies is the extent to which courts can make or break political fortunes and whether judges would remain neutral on high-voltage national issues. Commentators in the US and UK have debated these issues from their historical experience.
In the Indian context, the first question looks easy to answer. The debate on the 2G spectrum judgment by a special court is still simmering. What is beyond doubt is the disastrous impact of the trial on the Congress party in the 2014 general elections. Such misfortunes are not quite unfamiliar to the grand old party. In the past, it had suffered defeats at the hustings because of court verdicts. The Jain Hawala scam in which CBI officers were grilled by Supreme Court judges behind closed doors contributed to the party’s downward spiral. Like the 2G scam, the accused persons came out of the shadow one by one. Earlier, the Bofors scam had hit the party’s performance in the general elections. Ultimately that too fizzled out at the Delhi high court, but the party’s decline was written in the stars. Other parties also suffered at the hands of the Supreme Court, like the Mandal Commission judgment, which indirectly splintered the National Front. There have been several cases in which the court intervened when defection of legislators brought down state governments and it ordered fresh voting.
Dark clouds are gathering again as the hearing of 13 appeals in the Ayodhya case is approaching. The Allahabad high court had delivered its judgment in 2010 and the appeals were pending at the apex court for seven years. After much prodding, the court has agreed to start hearing the case early next month. The composition of the bench has not been announced. The verdict will have deep implications as one more general election is approaching.
Another contentious issue which is listed for hearing next week is the validity of the Aadhaar unique identity scheme in the context of right to privacy. The court will examine whether it violates the fundamental right. The Aadhaar card details of citizens are reportedly available for a small sum and a first information report has been filed in the latest incident of mass leakage. Another bench is set to hear the related issue of social media collecting personal information and transferring them to marketing companies and third parties. WhatsApp, Facebook and other service providers are in the dock in the Supreme Court. Since social media has become more powerful than public platforms and pamphleteering, the ruling of the Supreme Court on these issues is bound to change the campaign style of political parties.
Two other hot-button issues relate to immigration into north-eastern states from neighbouring countries. The Supreme Court speeded up the release of the National Register of Citizens in Assam, but the first list has already sparked confusion. The court will also examine the Rohingyas’ migration.
People of four southern states are eagerly awaiting the judgment on sharing of Cauvery water. A constitution bench had closed months-long arguments some time ago. Another judgment waiting on the line, with wide political ramifications, is the Delhi government’s appeal challenging the interference of the Lt Governor in state administration. There are sensitive social issues slated to be argued regarding “love jihad” and Parsi women’s quest for equality with men.
All these are politically volatile questions and the Supreme Court of India is said to be the most powerful of all democratic constitutions. Its role in turning the tide is beyond doubt. Which leads to the second point of discussion: whether the judges would remain neutral in troubled times. In times of stress, like in the Fundamental Rights case during the 1975 emergency, they have been accused of bending. In a later judgment, Chief Justice P N Bhagwati wrote that “it is now recognised on all hands that judicial conscience is not a fixed conscience; it varies from judge to judge depending upon his attitudes and approaches, his predilections and prejudices, his habits of mind and thought and in short all that goes with the expression social philosophy”. That is not a reassuring thought.