The crown and the uneasy head

On 8^th May 2025 the SC chastised Dr. Nishikant Dubey (Member of Parliament) for his remarks terming them “highly irresponsible”, “ludicrous” and “absurd”. He had remarked that the Supreme Court (SC) had assumed legislative functions and that it was fanning a “religious war” in the country.

What would one want to change in his remarks. The language, yes. The motives attributed, yes. The overall inappropriateness, yes. The underlying prompts, probably no. There is a general understanding in India that fingers should not be pointed at Gandhi (the freedom fighter), religion (other than Sanatan) and courts (especially the SC), no matter if the seriousness of the underlying issue is relegated to the background. The question is why Dr. Dubey made the remarks and why wasn’t there wider public outcry against him.

Shakespeare can be faulted for some of his lines failing the test of logic but one saying that survived all tests is “Uneasy lies the head that wears the crown”. Whilst the crown puts one on a pedestal, it also puts one’s vulnerabilities to public scrutiny. All three arms of a democracy i.e., the legislature, the executive and the judiciary wear the proverbial crown.

At a profounder level, the SC has two core responsibilities. One, to interpret the laws as they exist, with finality. The other, to ensure that laws, policies and practices are compliant with the Constitution of India and are enforced as such. It can scrap laws but it cannot change or make laws. In all earnestness, it can make suggestions to the legislature. Beyond this realm, it becomes activism or overreach. It is activism when the SC takes Suo moto cognizance of the issues of import or elbows the executive to do what it is otherwise obligated to or makes a compelling case before the legislature to enact laws. An overreach happens, when the SC’s actions tantamount to tweaking laws, entering the legislature’s domain.

Not sure about judicial-overreach but judicial-activism is, by and large, welcome. Someone needs to intervene if there is legislative inaction or executive apathy on issues important to the country. Who can do it better than the judiciary which still enjoys public trust and can galvanize the legislature and the executive into action. Having said that, the integrity of judicial-activism comes under criticism if it’s incident-based (not issue-based) or if it’s selective.

Let’s look back at some landmark rulings which haloed the SC and re-assured the public that the big brother is watching. The ruling against constitutional amendments that violate any fundamental right (2007), quashing of all licenses in allotment of 2G spectrum (2008), its own appeal before itself against the Delhi High Court ruling which brought the office of the Chief Justice under RTI Act (2010), ordering a probe by SIT when the government of the day declined to disclose the names of Indians holding black-money in a bank in Liechtenstein (2011), upholding the judgement of A.P. High Court which quashed sub-quota for minorities under the OBC quota (2012), putting the EC and the Govt. of India on notice for online / postal ballots for Indians living overseas (2013), declaring the transgenders as the Third Gender (2014), ruling  the right to privacy as a fundamental right (2017), decriminalizing homosexuality (2018), ruling that the disputed land (Bhagwan Shri Ram Janmabhoomi) be given to Hindus (2019) and striking down the scheme allowing individuals and companies to donate anonymously to political parties (2024).

Parallelly, two of the SC rulings that created a fair bit of negative buzz in the past were the ruling against the states wanting to redistribute land taken from Zamindars (1967) and the ruling in favor of the state’s right to unrestricted powers of detention during the emergency (1975-77).

What worries the citizenry today? The SC’s powers? Knowledge & experience of the judges? Judicial activism or overreach? The structural or operational issues internal to the SC? Personal conduct (aberrations, notwithstanding)? No. It’s the differential view taken by the SC on similar or near-similar circumstances and its reluctance to look inwards.

Seeking evidence and questioning practices, differentially.

Bhagwan Shri Ram was born 7,137 years back (5114 BC) in Ayodhya. Whilst hearing a suit, the SC considered it appropriate to examine people, seek evidence from the ASI and peruse religious texts & travelogues to build a firm understanding on the issue of Bhagwan Shri Ram Janmabhoomi.

A waqf is an express act of dedication, in the form of a declaration, of movable or immovable property for a religious or charitable purpose. Waqf came in vogue in India 818 years back around the time the Sultanate of Delhi was established (1206 AD).

Two simple points are made here. One, it was fine for the SC to seek evidence to prove the veracity of Bhagwan Shri Ram Janmabhoomi which carries a vintage of 7,137 years but reservations are expressed by the same SC about availability of proof for the properties belonging to waqf, a practice which, at best, is only 818 years old. The other, a waqf becomes recognizable on oral evidence or “by use” but “Aastha” and oral evidence are found insufficient for Bhagwan Shri Ram Janmabhoomi.

Opining that it’s too late, differentially.

Between 1988 to 1991 nearly 228 Kashmiri-Hindus were killed by the terrorists. Quite a few of them were targeted assassinations. Kidnappings, rapes, intimidation, threats and usurpation of properties were part of a systematic campaign to cleanse Kashmir of Hindus. About 100,000 of them were forced to leave the valley only to become refugees elsewhere in their own country. Roots of Kashmir, an organization petitioned the SC in 2017 to reopen the cases of murders of Kashmiri-Hindus and to set up a special crimes tribunal to look into ethnic cleansing. The SC declined to reopen cases, doubting as to where the evidence would come from after 27 years.

The year 1984 saw organized attacks against the Sikh community following assassination of Indira Gandhi, the then Prime Minister. In the widespread brutality, an estimated 8,000 Sikhs were killed across the country and their properties were destroyed. Later, many rioters were convicted and police officers sanctioned. An SIT was set up in the year 2015, after 31 years, whose actions led to convictions of some rioters whose cases were closed by the Delhi police.

How should the country view setting up a SIT (correctly so) after lapse of 31 years to reinvestigate and punish the perpetrators of heinous crimes during the anti-Sikh riots but the cases against those who committed equally heinous crimes against Kashmiri-Hindus could not be opened as there was a gap of 27 years.

Designating breakdowns and taking Suo moto actions, differentially.

Triggered by the controversies involving restoration of Scheduled Tribe status of Meitei and eviction of Kuki-Zo tribals from the forests, the border state of Manipur saw an unprecedented violence in May-2023. What followed was arson, vandalization of churches & temples, destruction of houses, burning of shops, looting, rapes and killings of over 250 persons, including the security personnel, in a span of two years. The SC termed police investigations “tardy” and observed “absolute breakdown of the constitutional machinery”. Later in August-2023, the SC took Suo moto cognizance and set up a committee to look into relief and rehabilitation. It also appointed a former Police Commissioner to oversee the investigations. 

In a span of five days in April-2025, Murshidabad district of West Bengal witnessed massive violence following implementation of the Waqf Amendment Act. The national highway was blocked, trains were halted, houses were burned, vehicles were torched, temples were damaged, three persons were killed and over 400 Hindus were forced to migrate from the district to save their lives. There were allegations of police inaction and political patronage to the people belonging to the Muslim community. One is yet to see the SC making any observations or forming any committee or appointing any former Police Commissioner to oversee investigations into Murshidabad violence.

Implementing affirmative actions, differentially.

As an affirmative action to bring the deprived section of our society at par with others, reservations are necessary. Selectively necessary? The SC ratified an amendment to the Right to Education Act to reserve 25% seats for the disadvantaged sections of our society. Minorities-run educational institutions are exempted from this obligation. Shouldn’t the SC have taken up with the government, in the spirit of equity, to place similar obligations on all institutions cutting across religions.

Viewing transparency, accountability, efficiency and equity, differentially.

The idea of a structured, broad-based mechanism for selection and transfer of judges, replacing the present collegium system, is yet to obtain a buy-in from the SC. The collegium system, which incidentally finds no mention in the Constitution and derives its authority indirectly from the other provisions, is too opaque for any democracy which seeks transparency. One wonders if the mechanism, which the Chief Justice too is a part of, adopted for selection of the Election Commissioners and the Director of CBI carries any value at all.

The judges enjoy an immunity for acts performed in their official capacity which is, without doubt, essential for judicial independence. Should their accountability arising out of personal misconduct too be protected invoking standard protocols for proceeding against judges. The recent case involving Justice Yashwant Verma shows systemic vulnerabilities which doesn’t help uphold public faith in the judiciary. Isn’t it worrying that the SC which takes stock of accountability of others, fights shy of taking serious initiatives to hold its own accountable.

Staying on the issue of accountability, the SC is not able to ensure that all judges declare their assets before they assume office. Though, in May-2025, some (21 of 33) judges voluntarily declared their assets, the mandatory nature of such declarations is missing. Isn’t it ironic that lawmakers are required to declare their assets to earn their eligibility to contest elections but those who are tasked with ensuring compliance to laws have no such obligations.

In a ruling in April-2025, the SC prescribed that Governors of States need to address all references to them within three months maximum. One is not sure if this ruling runs the risk of being termed as a constitutional amendment made outside of the legislature. The SC’s locus standi in the instant case notwithstanding, shouldn’t the SC too commit itself to similar timelines. A study titled “Courts on Trial” brings out that, on average, cases take around 13 ½ years from initiation in trial courts to disposal by the Supreme Court out of which the SC proceedings accounted for about a third of the total time.

The SC collegium recommends names for appointment as judges and the government agrees (or not) to the same. Over years the SC has expressed its concerns over the government’s “pick and choose” approach in accepting names, citing that the approach disturbs seniority. Isn’t it time that the SC addressed the issue of “seniority” with which cases are put up before it. Don’t listing and mentioning of cases leave a lot to be desired which, to commoners, appear as a “pick and choose” approach through which some cases jump the queue and get listed for early hearing.

Nupur Sharma made a controversial comment on the founder of Islam in a television discussion. She should have avoided it, given the sensitivities involved. The SC, whilst responding to her petition in 2022, practically ridiculed the threats she was receiving and called her a threat to the security of the nation. Observations were also made by the SC about the clout she enjoyed. Shivling in Gyanvapi mosque is called a fountain with impunity. A prominent leader from Tamil Nadu called Sanatana Dharma a disease and suggested its annihilation. A political leader from UP called Hindu religion a fraud. Another political leader from Gujrat commented that dogs peed on the bricks meant for construction of Bhagwan Shri Ram temple. The Speaker of Kerala Assembly made controversial remarks against Hindu Gods and mythology. Should one deduce that there is no threat to the security of the nation or no need for a Suo moto action by the judiciary as long as the controversial comments are on Hindu Gods and Hindu religion.

Yato Dharmastato Jayaḥ : the official motto of the Supreme Court

Bhagwan Shri Ram abandoned Mata Sita and banished her to forests, basis an observation made by a washerman. Knowing fully well that she was chaste, did he act in deference to his subjects. Or was He doing His Dharma? Roman ruler Julius Caesar divorced his wife, Pompeia, after the arrest of a person who had entered a party with the intention of seducing her. Caesar divorced Pompeia as he wanted his wife to be above any suspicion. Was the divorce to preserve his stateliness. Or was he doing his Dharma?

Speaking of judges, one is confident that they are insulated against all influences arising out of the socio-religious-political milieu they are a part of. Having said that, do we see situations where judges turn Lord Ram to abandon Mata Sita (in deference to public opinion) or Ceasar to divorce Pompeia (to preserve their stateliness). One has always wondered how a judge manages the dilemmas internal to her / him when confronted with an unpopular-right and a popular-wrong. Do they feel uneasy when a reference to them merits a ruling against a proverbial underdog. Does the differentiator between the wronged and the wrong-doer unwittingly fall prey to a psychological construct that those who are numerically disadvantaged are the ones who are always wronged. 

The ripples in the otherwise silent judicial-waters notwithstanding, India has faith in its judiciary, especially the higher judiciary. To straitjacket the legislature and the executive to fit the constitution, judicial-activism is necessary. But only as long as there is equity in activism. The judiciary too needs to appreciate that, in today’s information-driven world and inescapable reach of the social media, holy-cows too are being watched and commented upon, unlike before.