Chilling into silence: A weekly round-up on Constitution First

I feel compelled this week to pick up on a conversation we expressed through our editorial in the first week this month – on the Supreme Court’s handling of a school textbook chapter that included a section on judicial corruption. In that editorial, we highlighted three observations that may be simultaneously correct – (a) that the chapter could be analysed critically within the broader context of the executive’s tense relationship with the judiciary in the last decade, which could have direct implications on the decline of judicial authority and independence in the backdrop of an increasingly centralising, majoritarian executive, (b) that within the cacophony, both the executive and the judiciary may lose sight of urgent transparency and accountability reforms on the judiciary that are actually required, and (c) the episode rings warning bells on contempt jurisdiction retrograding into a dark, draconian era where legitimate dialogue on judicial reform becomes difficult for journalists, academics and civil society.

The Court’s order on Wednesday manifested our third worry, as it directed the Union and State/U.T. governments dissociate from three senior academics – Michel Danino, Suparna Diwakar and Alok Prasanna Kumar – and ensure they do not render “any service which would mean payment to them from public funds.” Some have argued, by now, that the Court’s action is entirely beyond even the contempt framework, ‘conjuring’ powers out of thin air, and others have noted that even if it had powers under its contempt jurisdiction to ban books, it certainly did not, to deprive individuals of employment.

This observation is specifically important for the Court is depriving opportunity, space and platform, and even attempting to chill into silence, individuals who have seriously engaged with the judicial institution, and provided consistent constructive criticism on the state of the Indian judiciary and reforms, in the institution’s own interest. And they have done so in a time that has proven to be extremely difficult for critical commentary to emerge, academic or journalistic, both in terms of studying the majoritarian shift in the executive, and long-standing issues of accountability and independence in the judiciary. As many have pointed out over time, and across geographies, ‘chilling effects’ are ‘conforming effects’ – armed with the goal of producing conforming and compliance behaviour on a societal scale, one that is corrosive to democratic societies.

Already, Indian academia traverses a chilling architecture of discourse – broadly across our social science institutions, the language of ‘anti-nationalism’ has been deployed to strategically target students, professors and universities to whiff out serious debate, conversation and difference on rising authoritarianism. In its own way, the same problem has extended to academic discourse on the judiciary also. As T. Prashanth Reddy has argued in a recent piece, Indian legal academia too has been suffering through a ‘chill’ on critical discussions on the judiciary – professors in NLUs, for instance, are hesitant to engage critically since judges sit on governing councils of the universities, and meaningful, methodical scholarship like Shubhankar Dam’s has emerged very much outside the ambit of the national framework.

When we speak of serious, constructive discourse on the state of the Indian judiciary, we speak of a wider school of thinking, writing and debating that evolves a forward-looking view on transformations that strengthen the judicial institution. Consider, for instance, the range of critical scholarship contributed by Kumar (who is one of the academics under the Court’s ‘ban’) – a simple overview of his work in Economic and Political Weekly leads to structured analyses on how the caste census could change the very conception of ‘socially and educationally backward’, why lower courts and tribunals in India are outrightly ignoring the Supreme Court’s orders, or why an independent bar is just as important as an independent judiciary.

These are issues of interest for many of us across legal academia, legal journalism and the bar. At The Leaflet, we have consistently attempted to bring critical, often uncomfortable conversations to the forefront, highlighting gaps, ideating reforms, thinking through issues for a stronger constitutional democracy, like this piece, by advocates Ravi Prakash and Shriya Sethi which lays bare the unregulated deliberative process between judgment reservation and pronouncement to argue for codified internal guidelines in India. It is precisely this kind of rigorous, institution-focused scholarship, uncomfortable in its implications, indispensable in its purpose, that we believe must remain central to any serious conversation about judicial reform.

And it is difficult to not see the Court’s recent move as something that chills this form of critical discourse on Indian law and judiciary out of existence, towards a larger kind of loss. Five years ago, the International Commission of Jurists wrote that the Court’s contempt ruling against Prashant Bhushan at that time risked “having a chilling effect on the exercise of protected freedom of speech”. Today, it is also an affront to progressive conversation on the judicial, jurisprudential and legal-political realities of our time, some of which conversation must arise necessarily from outside the bar.