Election fever reaches the Supreme Court

This week’s news cycle was dominated by Delhi Chief Minister Arvind Kejriwal’s arrest for his alleged role in the excise policy scam. On page 1, legal correspondents have been reporting the mini-saga of Kejriwal’s high-profile lawyers running across the city’s courts to secure bail for their client. On the op-ed pages, commentators and lawyers have been using strong words (“slide towards a full blown tyranny” — Pratap Bhanu Mehta; “call for the judiciary to sidestep its responsibility” — Hitesh Jain, lawyer and Vice President of the Mumbai wing of the Bharatiya Janata Party) to express their indignation. 

One of the strong words we heard a lot this past week was “browbeat.” It featured in Prime Minister Narendra Modi’s approving quote tweet of a letter complaining of the attempts of a “vested interest” group to pressurise the judiciary and defame the courts. The letter, signed by 600 lawyers and addressed to Chief Justice Chandrachud, calls upon the Supreme Court to drop its “dignified silence” and takes steps to protect against “attacks” on the judiciary. 

There is little left to read between the lines now. The letter might have used shadowy language like “false narratives” and “vitiating the atmosphere of trust and harmony” but you could scroll down the same Twitter timeline to know what this is actually about. It’s about lawyers like Kapil Sibal and Abhishek Manu Singhvi, who wear the dual hats of counsel and Congress party spokespersons, defending Kejriwal and taking up cases that pit them squarely against executive action. 

This is not a novel feature of our democracy, even though it is being reported with alarm and shock in some places. The courts have always been a site for proxy political battles. The movers and shakers of the legal profession have often been card-carrying members of political parties. In this game of dog-and-the-bone, the courts have been seen as yet another handkerchief, with each side chomping at the bit (one harder) to stake a claim. 

There are several things that have raised questions over this being a free and fair election (the IT Department’s freezing of Congress bank accounts, for instance), but I think that the noise and clamour being created in the media is not one of them. Theoretically, the media is the only channel through which government and political parties can get their message across to their judiciary. In a twisted way, perhaps, it’s reassuring to see that the BJP’s juggernaut still needs to make a public song and dance of its commitment to protect the courts from “calculated attacks.” 

The judges of the Supreme Court are old hands at this game. When Solicitor General Tushar Mehta asked the Court to pass directions against “social media posts intended to cause embarrassment” over its electoral bond verdict, CJI Chandrachud remarked that the Court’s “shoulders are broad enough” to withstand such commentary. In the public eye, they’ve managed to convey the impression that the dignity of the office is impervious to politics. 

This is not to say that the judges are operating out of a hermetically sealed chamber, unaffected by both paeans and trenchant criticism. It’s to say that they may be engaged in their own balancing act, trying to keep their wits and sagacity about them in the polarised maelstrom that is raging outside. 

Which is why the many shades of views that have been shared about the Court come across as rather grandiose: that the Court has failed its duty as the last vanguard of constitutionalism; that it is presiding over the slide of democracy into authoritarianism; that its decision in the electoral bond case is some sort of comment about its politics. 

Those dragging the Court into their mess shouldn’t take their own showmanship too seriously. One hopes that—privately at least—they are convinced that the Court doesn’t need saving. It’s their campaign which needs bolstering in the run-up to a heated election.

This article was first featured in SCO’s Weekly newsletter. Sign up now!

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