Helpless Spectators

How the Supreme Court evades administration of justice

- THULASI K RAJ

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.