supreme failure

American lawyer James M. Beck described the US Supreme Court as a lighthouse whose merciful rays of justice and liberty illuminate the turbulent surface of the water, making America a free and strong nation. Former Supreme Court Justice of India M. Jagannath Rao quoted Beck as saying that what is true of the US Supreme Court is equally true of the Indian Supreme Court. The time has come to test this belief in the 73rd year of our republic, especially in the wake of growing majoritarianism and rising ethno-cultural nationalism.

Over the years, the Supreme Court of India has delivered certain judgments with far-reaching consequences. It declared the right to privacy a fundamental right; non-criminal consensual sexual conduct between adults of the same sex; transgender persons recognized as a third gender; And declared triple talaq illegal. These decisions reinforce the belief in republican values ​​like liberty and equality as amended in our constitution.

black marks

Despite these bright spots, there are many dark marks on the Supreme Court’s record. Vidhi Center for Legal Policy has developed an excellent comprehensive tracker of all pending cases before five-judge, seven-judge and nine-judge Constitution Benches of the Supreme Court. According to this tracker, there are 25 main cases pending before a five-judge constitution bench and five each before seven-judge and nine-judge benches. These matters pertain to important constitutional and other legal matters that may have serious implications for the fundamental rights of ordinary citizens and our core republican values. There are more than 500 cases related to these main cases. These matters cannot be decided unless the legal issues are addressed in the main cases before Constitutional Benches. Some important cases that are gathering dust in the Supreme Court are as follows.

First, there was a flood of petitions before the Supreme Court challenging the constitutionality of the Citizenship (Amendment) Act, 2019, which provides a fast-track route to Indian citizenship to non-Muslim communities from Bangladesh, Pakistan and Afghanistan . Even after a lapse of more than two years, the matter is still pending in the apex court. Second, innumerable petitions have been filed challenging the President’s order of August 5, 2019, which effectively diluted Article 370 of the Constitution and bifurcated Jammu and Kashmir into two union territories. To date, the Court has done little precious work to decide this tricky question of law.

Third, petitions challenging the constitutionality of the Constitution (One Hundred and Third Amendment) Act, 2019 providing reservation in public educational institutions and government jobs for the economically weaker sections are also pending in the Supreme Court. The shocking thing is that the matter is not being heard since August 5, 2020, even though the law has already come into force.

Fourth, an important issue called . is referred to as Vivek Narayan Sharma Vs Union of India Supreme Court for more than five years. The matter pertains to the legality of demonetisation of all ₹500 and ₹1,000 notes aimed at curbing black money. It was the most audacious economic experiment in the life of the Indian republic which went horribly wrong as according to the Reserve Bank of India, more than 99% of the cash returned to the banking system. Surprisingly, the Supreme Court has not heard the matter since September 2, 2019.

Fifth, the Supreme Court has failed to conduct a proper hearing of the constitutional challenge to the electoral bond scheme over the past four years. This scheme strikes at the center of our politics because anonymous money of political parties is the root cause of corruption in public life.

constitutional duty

Granville Austin, a distinguished constitutional scholar, said, “The Supreme Court … is the custodian of equality under the law which is at the heart of the nation’s constitutional democracy. applied impartially to all citizens, it cannot be said that the Court has fulfilled its custodial responsibility. Having failed to decide the major constitutional matters in a time-bound manner, the Supreme Court “on quive” has not acted as a “sentinel”. The Court must abide by its constitutional duty of being a strong force to crush majoritarianism. The power of judicial review, which the Chief Justice of India, NV Ramana, calls the key to democracy , must be used firmly. Otherwise, India’s hard-fought constitutional democracy will be in serious trouble.

Prabhas Ranjan is Professor and Vice Dean, Jindal Global Law School, OP Jindal Global University. thoughts are personal