In one voice

In his new book, God Save the Hon’ble Supreme Court , a collection of loosely connected essays, eminent jurist Fali S Nariman writes on best practices for the Supreme Court. The discernible thread in the essays is his concern for the institutional sanctity of the Constitutional Courts, with a focus on situations where judges of the apex court are seen as not speaking in one voice.

Nariman believes in the primacy of the Constitution over Parliament and in the Supreme Court as the final arbiter of Constitutional ethics. He takes us through the arguments in Golaknath (1967), where the Supreme Court ruled that fundamental rights could not be legislated out by Parliament. Later, in Kesavananda Bharati (1973), the court held that fundamental rights could, in fact, be amended if the changes did not violate “the basic features of the Constitution” (emphasis Nariman’s) . The Supreme Court, thereby, reserved for itself the right to adjudicate upon what might constitute basic features.

Nariman treats this not as a political issue, but as a question of law. Interestingly, he gives the example of HM Seervai, who was lead Counsel for the Union of India in the Kesavananda Bharati case: “He was then firmly of the view that there were no basic features in the Constitution that could not be amended by Parliament. Much later because of the Internal Emergency imposed on 25th June 1975 and because of the first supersession of judges, Seervai changed his views, a complete volte face.”

After the experience of the Emergency and the government’s excesses, the Supreme Court asserted itself, which, in Nariman’s consideration, was merely a function of a normative reading of the law. Others have written about this assertion also being an illustration of the appropriation of messy democratic spaces.

The jurist treats the courts as distinct from the uncertain ethics of political spaces. Judges may dissent from each other in their pronouncement, but once law is laid down by the majority judgement, even dissenting judges must follow it. The assumption is that all judges are similarly committed to the same normative idea of a constitutional democracy and must maintain judicial discipline to safeguard it.

He does acknowledge that there have been disruptions, but lays them down to individual ambitions or to individual eccentricities. Since the problem is always personal, and never political, he argues that in the interest of institutional sanctity, it is best to let the individual retire, or, alternatively, for the dissenting voice to resign, and then raise issues in the public sphere.

A contrary idea states that the creation of constitutional morality does not happen automatically. It is a deeply contested political act. The evolution of constitutional law is not immune to extraneous political circumstances, nor to the personal ambitions of judges. Equally, it is affected by the social class of individual judges. For instance, it has been argued that judges who ruled in favour of the fundamental right to property were establishing constitutional morality, but also enacting their own class interests, since a majority belonged to a social class which would have been adversely affected by the abolition of property.

This argument presents a more difficult question: how do sitting judges dissent from already accepted norms?

In Nariman’s narrative, after witnessing the Emergency, the Court acted as a majority, refashioning constitutional morality and appropriating supremacy away from an elected government. Are there opportunities for the minority to do the same?

In his first chapter, Nariman gives several examples to indicate that it is the best of times and also the worst of times for the Supreme Court. He cites the incident where Justice J Chelameswar assigned to himself a case which purportedly made veiled allegations against Chief Justice of India Dipak Misra, thus appropriating the CJI’s right to assign cases to benches as he deemed fit.

Despite Nariman’s disapproval of Chelameswar’s actions in neglecting the norm that the CJI is the master of the roster, one must ask what other norms can one rely on if wishing to dissent in order to defend a constitutional ethic.

As illustrations of it being the best of times, Nariman cites certain judgements, including on Triple Talaq and privacy — which cement constitutional rights. However, at the moment, it is only good law laid down. Nariman does not comment on the actual impact it has had on political or social processes, something that practitioners constantly wring their hands about.

God Save The Hon’ble Supreme CourtFali S NarimanHay HouseNon-fiction₹399

The book, however, presents a radical idea. It states “constitutional law gets made in court cases — bit by bit — through continuing interaction between the advocate and the judge” (emphasis added) .

In the present-day Supreme Court, the popular understanding is that advocates are there to assist the judges and to answer questions.

It wasn’t always so. When K Subba Rao was CJI (1966-67), he asked advocate Niren De to enlighten the Court on whether the doctrine of “prospective overruling” could be applied to India. De stood up and said in clipped English: “I refuse to argue prospective overruling!”, Nariman recalls. “It was an eye opener as to what a brave advocate can do who is not willing to be brow-beaten or trapped by the court into accepting a presiding judge’s favourite point,” Nariman writes.

Shahrukh Alam practises law at the Supreme Court of India

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