Legislation by interpretation

In January 2018, 4 judges of the Supreme Court were in the news for taking a stand against the Chief Justice of India. This was hailed as a challenge to the executive (controlled by BJP), for trying to exert undue influence on other other arms of the government like the judiciary. It was probably an internal tussle for power, but was treated in the media as if it was a call for a complete overhaul of the Indian judicial system. Many media houses proclaimed it to be a historic moment and a watershed for the judiciary.

This is not unusual. Our judges and courts enjoy a peculiar kind of worship that creates this hype around them. Such is the hallowed status of the courts and judges that even though a majority of Indians believe that our politicians and administrators are irrevocably corrupted, they still believe the judiciary to be the last bastion holding out against this monster. We are told that the many privileges enjoyed by the court and its officers are necessary to protect the independence of the judiciary. As a nation, we have completely bought into this idea and it has erased all notions of accountability for the judiciary.

A right, but only at the discretion of the court

A few weeks before the 4 judges conference, the Delhi High Court had ruled against a petition to bring the Supreme Court under the Right to Information Act, 2005. Ever since the passing of the Act in 2005, the Supreme Court has resisted it. Supreme Court judges have refused to open doors to the powerfully transparent RTI and have insisted that the court should be governed only by the Supreme Court Rules, 1966; a much weaker and opaque tool for inquiry. These rules make information a privilege, offered at the sole discretion of the court.

It’s not surprising that the Supreme Court is avoiding accountability. Often hailed as a champion of Fundamental rights, the court has consistently moved in a direction that will ultimately put the court above all else, even the legislature.

When the Supreme Court struck down section 66A of the The Information technology Act, 2000, it was celebrated as a progressive judgement that upheld the fundamental right to freedom of speech and expression. But if we look closer, we will realize that the court does not actually support absolute free speech. In fact, no fundamental right is absolute; all our rights are subject to ‘reasonable’ restrictions put by the government. What ‘reasonable’ means is something that only the court can decide. In the case of the IT Act, it decided that 66A was not reasonable, but its cousins 69A and 79 (used to block websites and to establish liability for website content) were not considered so. Our fundamental rights come at the discretion of the court.

People sitting on a bench on the Bombay High Court premises

People sitting on a bench on the Bombay High Court premises.

A very complex basic structure

It is the duty of the court to interpret the law made by elected representatives of the people. However, it seems that interpretation is also a power in the hands of the court to decide the law of the land. This power has been amassed slowly over the years, building on the foundation laid by Kesavananda Bharati v. State of Kerala (1973). In this landmark case, the Supreme Court came up with a really curious idea of the basic structure of the Constitution of India. It was held in this case, that our Fundamental rights are not absolute and can be abrogated by laws passed by legislature. There was only one caveat – that any such law (or amendment to the Constitution) should not go against (or alter) the basic structure of the Constitution of India. What this ‘basic structure’ means, was for the court to decide. Over the years, this concept has been modified on a case to case basis and there is no concrete definition even 45 years later.

The basic structure doctrine, unique to India, was the niftiest judicial trick ever pulled. The Court essentially declared that the Government may pass laws to restrict the fundamental rights of the citizens, but only with the permission of the court. This doctrine is so malleable, that beef bans across India (that curtail our rights) and the striking down of section 66A (that ostensibly upholds our rights) are both direct results of this doctrine!

While striking down Section 66A of the Information Technology Act as unconstitutional, the Supreme Court had rejected the government’s plea that it was committed to free speech and would ensure that the provision was administered in a reasonable manner.  The court insisted that any such assurance cannot bind future governments and who is to say how they might misuse it. The plea was also rejected because the offence under 66A was too loosely defined and broad. It is ironic that the doctrine used to strike down this draconian law suffers from the same drawbacks.


  1. I am glad I stumbled upon this, Aamil.

    Liked by 1 person

    1. I’m glad that you did too :)


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