Batty Bhatia ends his diatribe against Chandrachud thus
F. Conclusion: A Conversation with Carl Schmitt
Schmitt knew that Hugo Preuss, who wrote the Weimar Constitution, had left the door open to Presidential rule by ordinance. This was the 'state of exception'- we would say 'Emergency'- provision which countries with a monarch stand in no need of. However, in the early Seventies, Ted Heath in the UK declared four states of emergency in the face of mass industrial action before getting the order of the boot. Canadians, in response to Quebec separatism, used the War Measures Act and only got round to passing an Emergencies Act towards the end of the Eighties.
As for Schmitt, it turned out he was wrong in law. Suspending the rule of law also means there is no legal power to protect the actions of the person doing so. Extra-legal measures are outside the law. True, they may be indemnified at a later time but then again such indemnity may be cancelled. There really is nothing very much that can be said about this foolish doctrine.
In this blog post, we have surveyed the complex, complicated, and sometimes contradictory two-year legacy of Chief Justice Chandrachud’s tenure at the helm of the Supreme Court.
Chandrachud relied on past judgments- e.g. a 2016 Supreme Court decision saying J&K had no shred of sovereignty- and gave some ratios which however depend entirely on whether the Union Government sees the country as Federal or Unitary. If the country adopts a brightline doctrine of political question, these will fall by the wayside. It is important to remember that the Bench only expanded its role because 'nature abhors a vacuum'. But it has added noise to signal and may go the way of the Pakistani or Bangladeshi bench- i.e. be drastically cut down to size.
In the days and weeks to come, the individual components of this legacy can be studied in greater depth. The final questions that remain for us to ask before closing are these: is there an overarching framework that can help us make sense of this tenure?
Yes. Chandrachud became CJI just when there was pushback against the Collegium and 'inherent power'. He courted favour with the public and thus avoided the sort of humiliating confrontation we have seen in two of our neighbouring countries.
A way of seeing that can fit these diverse threads into a pattern? A unifying theme – or register – that characterises this legacy?
Chandrachud was verbose but a nice enough guy who didn't want to kill babies or let innocent people languish in prison. Still, it turns out, the fellow is a Hindu and what better can you expect from a kaffir?
I believe that there is.
At the end of the previous section, I mentioned Carl Schmitt, the mid-20th century German jurist and theorist of executive power.
A spoiled Catholic like Heidegger. After the War, the Centrum was rehabilitated and so these guys were allowed to make a modest sort of comeback.
While I discussed Carl Schmit when considering CJI Chandrachud’s opinion in the Article 370 case, I think that we see traces of Schmitt sprinkled across various facets of the Chief Justice’s tenure.
No we don't. The 2016 Supreme Court verdict was that J&K had no shred of sovereignty. The place may have had a 'special' status- but only because that status was lower to anywhere else and thus Omar Abdullah could be kept in jail on the basis of a draconian act his grandfather had passed.
In particular, from the web of judicial and administrative acts of the Chief Justice that we have discussed in this post, there emerges an approach towards power that is reminiscent of Schmitt’s constitutional vision.
If so, Chandrachud should have been saying 'I refuse to entertain this case. Modi must appoint himself the Sovereign and settle the matter using extra-judicial means. He is the 'Nar-indra' or God among Men. Does Veda show Indra as deferring to the decisions made by Judges? No! Yama is the divine Judge but he rules over not the living but the dead!'
Carl Schmitt’s most famous and enduring idea was defining the “sovereign” as he who decides on the state of exception; the sovereign who stood above the law, immune from legal norms, and decided – free of legal constraints – when the legal order would apply, and when it would stand suspended.
This idea had no application to India or the UK or Canada. Even in Weimar Germany, it was the legislature which ceded power to the President to rule by ordinance. Moreover, subsequent German law showed that the legal order isn't suspended at all. It may not be operational by reason of exigent circumstances, but once it comes into play it can punish all illegal acts whether committed by a sovereign or not. In Anglo-Saxon law, it is accepted that though there is sovereign immunity, a King who wages war on his people may be stripped of sovereignty after which his head may be cut off.
This power, naturally, carried within it the power of suppressing those who did not agree with the sovereign’s assessment of when the state of exception was necessary.
This is simply an ipse dixit assertion with no basis in law or in fact. No de jure power or authority 'naturally' endows its possessor with supernatural force such that they can't be killed or beaten to a pulp by those it may want to suppress.
Schmitt’s abstract theory found specific application in his arguments for expanded executive discretionary powers under the Weimar Constitution, with rights being subjected to such discretionary power, and in the idea of “guardianship” over the constitutional order.
To be fair, it wasn't till the 1926 Presidential election that the glaring defect in the Weimar Constitution became apparent. I have discussed this elsewhere.
And it was Schmitt who provided the normative defence for the notorious Enabling Act,
Nonsense! Hindenberg signed off on the Reichstag Fire Decree while negotiations with the Nationalists and the Centre enabled the passing of the Enabling act. It wasn't strictly legal and the Weimar constitution remained in force. Schmitt had represented the Federal Government against the state of Prussia but had nothing to do with the Enabling Act.
which authorised the German Chancellor to rule by decree,
This had already been the case since the time of Bruning in 1930.
notwithstanding Parliament and the Constitution.
It was in the fucking Constitution. Preuss was a fucking professor of constitutional law. That's why the Constitution was so utterly shite.
Schmittian echoes whisper in the halls of CJI Chandrachud’s prerogative jurisprudence:
Batty Bhatia is seeking to suggest Chandrachud is a fucking Nazi. Why? Chandrachud would not order Doctors to stop the heart of a tiny baby.
in the executive empowered to unilaterally alter the constitutional framework and suspend the federal form (an Enabling Act by any other name!);
India is unitary. It is not federal. There is no dual sovereignty. If Weimar had had the Indian constitution then Von Papen could have got rid of the Prussian Government by a stroke of the pen. No court could have found this 'unlawful'. Mrs Gandhi imposed President's rule on plenty of States without any rhyme or reason. The Bench may claim to have reversed this, but we can't be sure that is the case. Anglo Saxon constitutional jurisprudence has always been 'dog's law'- i.e. it follows the course of events. It does not shape them. It wasn't till the Chanak crisis of 1922 when Canada refused to send troops to Turkey that the modern notion of independent 'Dominions' came into existence.
and to leave statehood hung in suspended animation, awaiting an indeterminate, future restoration.
I suppose that will go through now Omar Abdullah is back in the saddle. Maybe Jammu will have to be split off. Let us wait and see. This is a 'political question' with a vengeance. The Bench is otiose.
They echo again in the easy equation of unity with uniformity, and integration with homogeneity, a flattening of the kind of constitutional pluralism that was an anathema to Schmitt.
And which India embraced in 1949. Pluralism was a word coined for Burma. It failed miserably. India is unitary.
And finally, they resurface in the figure of the master of the roster:
The solution here is for an independent, professional, administrative service for the Courts. Get rid of the Collegium system while you are at it and define a suitable doctrine of political question.
constraints on discretion, expressed through well-worn doctrines of review and reference, or recall and curative,
The Bench doesn't seem to like 'recall'. Review and curative remain. We don't know what 'recall' actually means.
could be suspended at will, a judicial state of exception where the master of the roster took over as an anointed “guardian” of the judicial order, moulding and remoulding it in service of an undeclared goal.
But to overrule a divisional bench, the CJI has to get enough judges on his side. Thus he can't be the Fuhrer of the Courts.
If the practice of legal interpretation is a dialogue with the voices of the past, then it was the voice of the German jurist that most inflected the tenor of the Chief Justice’s jurisprudence.
If this were true, he would decline to rule on any matter where executive privilege might be invoked. He would say the matter was not justiciable. That is Schmitt's jurisprudence. It is the doctrine of keep your head down and look the other way- like the judge played by Burt Lancaster in 'Judgment at Nuremberg'.
But then, one may ask, what of the other judgments that we have discussed in this post: on the federal structure,
which doesn't exist
on free speech,
which Ambedkar and Nehru amended the fuck out of
on equality and non-discrimination,
inconsequential virtue signalling
and so on – all accomplishments to be appreciated, no doubt? No doubt; but a contemporary of Schmitt – Ernst Fraenkel
a Leftist considered too right-wing by the German students of '68
– provides us with the framework to understand this: the “dual State,” a framework where the “normative State” (bound by norms) and the “prerogative State” (defined by unchecked power) exist side by side, with the former giving way to the latter, whenever required.
In other words, one law for the affluent members of the majority population and another for the rest. This can be done explicitly through Jim Crow or Apartheid or Sharia law or whatever.
In CJI Chandrachud’s tenure, we saw both the “normative Court” and the “prerogative Court,” the relationship between them best understood – as I have argued above – through a Schmittian lens.
That is the one way Chandrachud can't be viewed. He'd have had to have kept saying 'not justiciable!' to every petition involving executive authority. It is a different matter that one can call the fellow a virtue signaller who understood the perils of an open confrontation with Modi. He very cleverly projected himself as a devout Hindu whom God had guided to give the Ayodhya decision. This means that whereas the Bangladeshi and Pakistani Chief Justices are getting hammered, he comes across like a fucking Bollywood star.
Perhaps one may believe that this was what was needed: a Schmittian sovereign executive
in which case justiciability would be confined to private contracts and petty offenses
to curb the polyphony and pluralism of the constitutional order,
nothing of the sort exists. India has a unitary constitution. There is no fucking dual sovereignty- not even a shred of it even for J&K.
and a Schmittian master
i.e. Modi as Fuhrer. In that case no one would know the name of the CJI.
to curb the polyvocality of the judicial order.
No judicial order is 'polyvocal'. Either all judges concur and one judge writes the decision or different judges may chose to present their own judgments whether concurring or dissenting. However, the law, as a whole, is univocal. There is a principle of harmonious construction. The question is whether Chandrachud contributed to this. Only time will tell. That which future generations of jurists rely on is constitutional law. That which isn't is inconsequential.
It is a view, after all, that many have held across time and space: the Chief Justice’s tenure simply saw it clothed in legal and constitutional language.
Previous Chief Justices clothed it in illegal and pornographic language- right?
It is not for us here to praise or to condemn,
this cunt condemns Chandrachud for saving the life of a baby.
but simply to understand. And how are we understood most clearly, if not through our choice of interlocutors?
Why choose Schmitt? He thought anything the Fuhrer did was non-justiciable. Chandrachud could scarcely have thought so. Otherwise why not mint money in private practice rather than become a judge?
Perhaps, then, when all is said and done, this judicial legacy can be summed up thus: a conversation with Carl Schmitt.
A conversation with batty Bhatia- who is so fucking ignorant he thinks Judges can be sued for libel by defendants- can be summed up thus. Guys with phoren PhD in Law have shit for brains unless, like Chandrachud, they have their eye on posterity and have worked methodically towards that end. Hopefully, Chandrachud will write a book on constitutional jurisprudence. His English is good. Perhaps the rising generation of lawyers will find such a book useful. My own view is that the Judiciary either requires root and branch reform or should simply be left to wither on the vine. Justice is merely a service industry. There may be an official monopoly but that monopoly may be disintermediated. Batty Bhatias speed up that process of decline and decomposition.
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