Supreme Court, a favourite whipping horse for restless people, can't be assessed in isolation

By Salman Khurshid*
Of late the Supreme Court had become a favourite whipping horse for restless people. Those who are by nature and training careful use respectable syntax and vocabulary but others resort to expressions that cannot but damage the standing of the Court. The serious concerns being expressed suggest a deep disappointment with the outcomes of proceedings in the recent times of challenge.
It is often suggested that the Court is sentinel on the qui vive and understandably expectations run high particularly when other institutions appear to be failing. Justified as the expectations might be one must understand that the Court cannot be assessed in isolation. To begin with although described as a Court in reality it is several Courts comprising two or three judges.
Like all other human beings they are not identical and have differing perceptions. The history of the Court is replete with instances and periods when the character of the Court had swung from activist to conservative, resistant to pliable. Those of us familiar with Court can tell one period apart from another, one judge from another.
A passage from the dissent of Justice HR Khanna in Keshavanand Bharti is very instructive:
“Assuming that under the sway of some overwhelming im- pulse, a climate is created wherein cherished values like liberty and freedom lose their significance in the eyes of the people and their representatives and they choose to do away with all fundamentals rights by amendment of the Constitution, a restricted interpretation of Article 368 would not be of much avail.
“The people in such an event would forfeit the claim to have fundamentals rights and in any case fundamental rights would not in such an event save the people from political enslavement, social stagnation or mental servitude.
“I may in this context refer to the words of Learned Hand in his eloquent address on the Spirit of Liberty: ‘I often wonder whether we do not rest our hopes too much upon Constitutions, upon laws and upon courts. These are false hopes; believe me these are false hopes...Liberty lies in the hearts of men and women; when it dies there, no Constitution, no law, no court can save it; no Constitution, no law, no court can even do much to help it’.”
Is that a sort of mea culpa of the courageous judge who is remembered for his dissent for liberty and freedom in the habeas corpus case? Or is it an insightful admission that the ultimate preservation of democracy and rights rests upon the shoulders of the citizen and the constitutional Courts can only assist the citizen’s quest for dignity, not take on the entire burden?

Judges erred in holding Habeas Corpus to be suspended during the Emergency, only to graciously admit later to have made a mistake

My friends who speak an uncompromising language of rights have my unqualified admiration that will only grow immeasurably if they are adversely affected by their candour. However, the trouble is that we live in an imperfect world and the imperfections of democracy are only a part of it. 

Heroism might work in revolutions but our contemporary everyday existence is far from a revolution, no matter how we might describe it with a tinge of romance. Discarding the black and white binary of choice we must learn to deal with shades of grey. And in the process not to be unreasonable in our expectations of the institutions we cherish.

Salman Khurshid

There is of course an appeal that one can and must make to the judges we respect. We put our faith in them and trust them in matters of life and death, next to God alone. We are at times disappointed in their decisions and even unable to understand. But there is comfort in knowing that in the end justice will not elude us.
We know that there are times that we cause distress and show disquiet but only to finally bow to the their wisdom. Our allegiance and respect is neither contrived, nor hypocritical, if with a touch of theatre. Without the judges where would be? But equally without us what would there be for them?
Thus in these trying and perilous times we need that sacred relationship to endure. Our society is under unimagined stress with legitimate and illegitimate contests and claims for garnering resources. The judges by definition must preside over that and but for them we will be hopelessly lost. It is for that reason, if not nobler thoughts, that we pray for the well being and preservation of the judges.
But, with respect, a caveat to remember that it was great judges who erred in holding Habeas Corpus to be suspended during the Emergency, only to graciously admit later to have made a mistake. They went on to write great judgments in the years beyond. For a system that lays great importance on precedent is it too much to ask to embrace greatness without hesitation or interruption. When the pot calls the kettle black and morality is contested, who but you must preserve sanity and humanity. Generations to come will be eternally in debt, my lords.
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*Congress leader, senior Supreme Court advocate, former Union external affairs minister. Source: Author’s Facebook timeline