Yearender 2023: SC verdicts cast a shadow over quest for justice, constitutional rights

For the judiciary, specifically the Supreme Court, the year gone by was marked by decisions that have cast a pervasive shadow over the quest for justice and constitutional rights.

From the Supreme Court’s dismissal of Bilkis Bano’s review petition to the contentious denial of an independent probe into alleged extrajudicial killings of Chhattisgarh tribals, the apex judiciary has left many grappling with the repercussions of a perceived erosion of civil liberties.

Hopes for a course correction rested on the arrival of a new year and a chief justice embodying the promise of change.

And why this optimism? DY Chandrachud assumed office of the Chief Justice of India on November 9, 2022 with the assurance of a two-year tenure, longer than any of his predecessors over the past decade. He brought with him an unmistakable aura of progressiveness that emanated from his distinguished Harvard background, an exceptional career, and a pristine pedigree that stands in stark contrast to the criticisms and controversies of his predecessors. Given that Chandrachud was the CJI for the entirety of 2023 (his term ends in November 2024), it would not be wrong to say that the apex court, in a sense, got moulded in the image of its chief.

But, what image was that and, more importantly, did that impressive facade truly bring about substantive change? This contemplation takes on added weight when considering the historical context, where the courts have at times seemed inclined to align their decisions with the prevailing preferences of the governments.

Therefore, moving away from presumptions, let us scrutinise the decisions rendered by the Supreme Court of India.

Ignoring hardships

In its inaugural session of the year, the Supreme Court lent endorsement to the rationality behind the demonetisation of Rs 500 and Rs 1,000 notes. The year ended with a Constitution Bench, headed by the CJI, upholding the abrogation of Article 370 in Jammu and Kashmir. In both judgments, while underscoring the duties of government, the court, in its final verdict, turned a Nelson's Eye to the hardships borne by the ordinary citizens.

Within the roughly 400 pages of the Article 370 judgment, one cannot help but question whether judicial pronouncements truly grasp the impact of government actions on the everyday lives of millions of Indians. The Article 370 verdict has been roundly slammed for its “judicial inactivism”, for laying down devastating interpretations of the Constitution and legal precepts that are at gross variance with settled precedents in constitutional law. Luminaries ranging from senior advocate Fali Nariman to former Supreme Court judge Madan Lokur and academicians such as Upendra Baxi and Faizan Mustafa have all pointed out the deficiencies, inconsistencies and fallacies in the judgment.

As such, 2023 began with the apex court displaying a wide disconnect between what worthy members of its Bench preach at seminars and lectures and what their judgments actually end up doing. With the Article 370 judgment, the year ended with the court reaffirming this new normal.

The ambivalence persisted even in pro-life cases. Despite a notable shift in allowing termination of pregnancy for married women with post-partum depression, the Supreme Court swiftly denied such permission in a subsequent hearing. Chief Justice Chandrachud asserted that the pregnancy lacked immediate threat, allowing the woman’s parents to decide on adoption while suggesting the state care for the baby. In terms of reproductive rights, the denial of abortion reflects a disengagement where legal frameworks often fail to consider the lived experiences of women. This perpetuates risks to women’s health, resonating a global challenge that India must confront with a compassionate outlook.

Progressive stance

In contrast, the court’s compassionate stance on ending treatment for the terminally-ill emphasised the individual’s right to a dignified death under Article 21. This critical decision not only empowers individuals to make choices about their treatment but also eases the legal complexities surrounding end-of-life care for patients. Considering the state of healthcare for the underprivileged, it is important to note that the positive impact of this shift may be most pronounced for only a select few.

Additionally, in a progressive move, the court asserted its authority to grant divorce when a marriage has irretrievably broken down. It departs from the antiquated burden of proving wrongdoing. This shift aligns with evolving societal norms and streamlines the legal process, reflecting a more contemporary and empathetic understanding of heterosexual marital relationships.

The court extended its pro-choice lens to LGBTQIA+ also and recognising queerness as a natural phenomenon. But, on the crucial issue of recognising same-sex marriages as a legal union, the highly anticipated verdict, live-streamed via YouTube, fell grossly short of embracing this pro-choice ethos. This was surprising given Chief Justice Chandrachud's historical support for LGBTQIA+ rights, where he had previously challenged the notion of marriage as “static and unchanging.” Despite advocating for equality, Chandrachud curiously deferred the decision to Parliament, raising questions about the court's steadfast commitment to actively championing queer rights.

Cautious inclusivity

This concept of cautious inclusivity, stopping short of granting legal recognition to non-heterosexual marriages, highlights the ongoing tension between societal evolution, legal reform, and ‘traditional’ values. But then again this approach seems to be judicious in balancing separation of powers. This guarded tactic seems to raise scepticism regarding the court’s ability to adopt a proactive stance independently of government influence. As it stands, the court appears to rely on encouraging people’s patience for government decisions, prompting questions about its autonomy in shaping progressive policy.

While recognising the court’s pro-choice stance empowers some individuals’ liberties, we must also examine its potential broader societal impact. These judgments mark a shift in navigating sensitive life choices, reflecting a careful consideration of the complex interplay between medical ethics, marriage dynamics, individual rights, and societal perspectives. As nations worldwide grapple with similar ethical dilemmas, the court’s decisions offer a valuable roadmap for navigating these complexities.

Nevertheless, this emphasis on societal considerations must be weighed against potential risks to individual freedoms. This is highlighted by recent judgments, notably the court’s declaration that mere membership in a government-deemed unlawful organisation constitutes a crime under the Unlawful Activities (Prevention) Act, of 1967. This verdict signals a possible erosion of civil liberties, carrying significant implications for minorities, marginalised communities, and dissenting groups. Similarly, the court’s protection of lawmakers’ free speech, while crucial, needs clear boundaries. This is to prevent it from becoming a slippery slope for hate speech targeting vulnerable communities.

The court’s decisions merit critical examination, not only for their immediate legal implications but also for the preservation of individual liberties of the marginalised. As the judicial landscape evolves, a nuanced understanding of the delicate balance between the threads that bind the societal fabric becomes imperative.

While recognising the need for a nuanced understanding of individual rights versus societal considerations, especially in light of recent controversial judgments, it is also imperative to recognise the Supreme Court’s positive strides forward this year. This is essential for a comprehensive assessment of the evolving judicial scenario.

Decisive moves

Remarkably, the Supreme Court did make efforts for some decisive moves. It concluded a staggering 52,000 cases this year. This is an unprecedented feat in six years. The court called it a “watershed moment in the nation’s legal history”. The year also ushered in technological advancements, live-streaming Constitution Bench hearings, a technology-friendly case listing system and a seamless e-filing system, marking a significant shift in making the Supreme Court more inclusive, accessible, and transparent. The court also critiqued the “sealed cover” practice as detrimental to open justice. It admitted the dangers of perpetuating a culture of secrecy and opaqueness. It reflects the court’s commitment to open-court principles and transparency in the justice system.

The court also sided with the AAP government when complications unfolded between federalism and governance. This crucial Delhi ordinance judgment proved temporary. But within weeks, the scales tilted back, courtesy a presidential ordinance and parliamentary intervention, reinstating the Union government’s control and paving the way for the formation of a National Capital Service Authority. So despite attempts to delineate authority, the court found its decisions delicately brushed aside by the government.

The stark dichotomy in this year’s judicial pronouncements is therefore evident—the liberal facade diminishes when confronted with substantial challenges to state authority. As for the Chief Justice and the promised winds of change he appear more like a mirage – crucial cases get deflected, and urgent interventions fail to materialise.

Justice for the common citizen, it seems, finds a warmer welcome in academic halls than in courtrooms.

Fresh controversies

Now, as the year ends, fresh controversies engulf the Supreme Court. Allegations of case rostering irregularities and sudden case transfers cast a shadow of doubt.

As the year ends, the court’s pivotal role as a true guardian of people’s rights hinges on steering complications with a steadfast dedication to fostering a progressive legal environment.

As 2024 rings in, the trajectory of the court’s decisions will shape the destiny of democratic values against governmental overreach. The hope lingers for future pronouncements echoing conviction rather than hollow appeasement. The court’s response to internal turmoil, its delicate balance between prudence and courage, and its dedication to a justice system where democratic values are foundational will determine whether the new year heralds a true guardian of people’s rights or a mere rubber stamp.

(The writer is a postgraduate in law from the University of Cambridge. Her work lies at the intersection of economic development and legal history. She also works for the Indian Civil Liberties Union)