What we think about when we think about the Supreme Court

When leaders of institutions demit office, it presents a good occasion to reflect on and take stock of their tenures. This is also true of the Chief Justice of India. Of late, however, there appears to be a focus shift towards individuals and cults of personality in the overall reflections about the Supreme Court.

This is largely the doing of the judges themselves, but set in a broader canvas of the Court as a political institution, this may also be an occasion to gather insights about the Court itself at an institutional level. The Court, like any other institution wielding power, appears to be invested in how it is perceived by its stakeholders.

While Chief Justices of the Indian Supreme Court enjoy an enormous position of power, their tenures require intense scrutiny. It is important to ensure that what we think about the Court does not begin and end with what we think about individuals. To begin with, two caveats: first, this article is not about the last Chief and yet, it is also true that the analysis here is occasioned on account of his tenure. Second, the analysis is not to diminish other excellent analyses of the legacy of (and at times, cults of personality surrounding) former Chiefs, but only to introduce sobriety to how we think about the Court and its role in our polity in general.

This analysis has a background and a foreground. The background is the idea of justice itself as being one subject to perception, and the foreground is how the Court, like any other political institution, is invested in perception management. Does this condone, or worse, absolve former Chiefs of their failings at the helm? I sincerely hope not. This analysis, if true, spares no one individual, and in fact, is true from day one of the Court to the present. It is useful because it need not depend on the mysteries around a mere individual’s ambitions, shortcomings, weaknesses or strengths.

Perceptions of Justice: The background

“Never forget that justice is what love looks like in public.”

This uncommon description of justice tells us that perhaps love is what justice is truly made of. It also tells us that justice is an outward show of this very feeling, with all its complexities. In the world of realpolitik where hard-nosed interactions permeate every act of the individual as well as that of the institution, this may be perceived as a naïve or dreamy description of justice. Love has nothing to do with justice, people may believe, given the times we live in. There is injustice on the daily, and one would think, even the deliverance of justice is less and less characterised by love, and more by apathy. However, does this not then fortify this claim about how justice and love are alike? When the jurist says, “humanise justice”, does she not mean this?

Justice, akin to love, is buoyed by perception. The deliverers of justice are invested in how they are perceived by those who receive their love, and their justice. ‘Their’ justice because, like love, justice is not (while it ought to be) the same for all. It is also true that justice, like love, can at times leave us feeling betrayed or cheated. In the ideal world, it should matter little to the judge how she is perceived when delivering justice. They hear competing arguments, deliver judgments without fear or favour, and then they are done with their duty. Yet, in today’s world of live-streamed proceedings, where perceptions can be formed and destroyed in a matter of seconds by one viral X post, one video, one op-ed or another press conference, can we still truly believe that justice and her judge are aloof?

Managing perceptions: The foreground

At first, it appears counterintuitive to think that an impartial and independent Court would have to manage perceptions. However, consider this - the Supreme Court is often called upon to decide the extent of its role, powers and functions, and in doing so, the Court, through its judgments, tells us what we should think about it. The Court has described itself as the “final arbiter”, the “custodian and enforcer” of constitutional guarantees, “protector” of civil liberties, and many such adjectives. Another favourite of the Court is ‘sentinel on the qui vive’—evoking the imagery of the alert sentry always awake to protect the edifice of citizens’ fundamental rights. In a given decision, whether the employment of these adjectives is necessary to the outcome is moot.

Two judicial ‘moves’ of the Court may also help explain this. First, the Constitution is a political document, and its interpretation is also often a political act. There is a school of thought (now unpopular) that subscribes to the idea that legal reasoning is indeterminate. In the realm of constitutional interpretation, it argues that the selection of a particular line of reasoning is imbued with a particular politics. Second, by at once affirming the supremacy of the Constitution and enjoying the position of the sole interpreter or enforcer of the Constitution, the Court - itself a creature of the Constitution - can wield power in a polity that is much higher than that of a traditional translator or interpreter. For instance, courts (as opposed to the State) can even claim to speak for the citizen. While arguably this is a function of the Court, these moves serve to entrench its power in those subject to it, as well as to have those subjected, acquiesce to such exercise of power. At times, an unsavoury fallout of this is also the possibility of depoliticising a political issue when it enters the courts.

Yet, if all this is true, why the Court should be concerned about and is likely invested in its perception management becomes plainly visible. Is the Court fairer or less fair, more accessible or less accessible, more empathetic or less empathetic, more serious or less serious? Is the Court tech-savvy, is it conservative, or is it liberal, is it hard-working or does it vacation too much, is it the alert sentry, or asleep at the wheel? These are as much questions of perception as they are queries with quantifiable answers. We have learnt from economics that perception management is important for the economy in general, but if it isn’t backed by strong fundamentals, it only serves to briefly hold up a bubble. It is important to remember here how many times we are told about instilling and reaffirming the “faith” in the judiciary. Why faith, if we don’t lack proof?

The Chief Ambassador

The Chief Justice has become, especially in recent years, the chief ambassador of the Court. Chiefs have actively contributed to creation and destruction of perceptions of the Court. Then again, individuals with limited tenures in public-facing positions of power are often also mindful of their own legacy. Perception management of the Court may then be subsumed by a personal project of creation of cults of personality. The Indian Supreme Court, like any other institution, is also about the individuals who man it, but it is not only about them.

The image of the institution was certainly one of the projects of the last Chief Justice. His push towards making the Court more tech-savvy, securing its own insignia with a dedicated flag and emblem, ‘breaking ground’ for infrastructural makeovers, and most significantly, live-streaming of its proceedings. While these may have helped with perception management, whether they are good outcomes that bring justice closer to its conception as ‘public love’ is doubtful. Does it help to have bail become the exception and not the rule? Then does it matter that this jurisprudence is forged in a lavish building complex? If the Court’s role in our constitutional polity is allowed to be dictated by the personal ambitions and failings of a leader preoccupied by his legacy, the institutional heft of the Court is in danger of becoming prisoner to the leader’s persona.

Finally, it is not fantastical to wonder if the conundrum of the lover (of not just loving but also wanting to be loved) troubles the givers of justice. A study from Brazil found that since the streaming of its proceedings, Supreme Court judges acted more like politicians increasing their exposure - not shying away from “sunlight” but reveling in the spotlight! Did the Indian Supreme Court humanise justice more when they revealed a new figurine for Lady Justice, or when they went out of their way to secure admission to the IIT for a Dalit student? Do we desire more of the former or the latter?

What are we thinking about the Court when we think about the Court, and how much of it is what we are told to think about it?

Govind Manoharan is an advocate practising at the Supreme Court of India.