Thursday, January 28, 2010

Our Supreme Court at Sixty

This has been a week of anniversaries. Last Sunday marked sixty years since the Constituent Assembly met for its final session and members signed the Constitution. The Election Commission observed the sixtieth year of its existence on Monday. And on Tuesday, with parades and fanfare, we commemorated six decades of our nation's existence as a Republic. To paraphrase Nehru: “events crowd in upon us and because of their quick succession we are apt to miss their significance.”

Nehru had the 26th of January 1950 in mind. But his words apply with greater force to the 28th of January, which marks the diamond jubilee of the our Supreme Court's inauguration. That jubilee is celebrated by the Court's bench and Delhi's appellate bar. But most opinion editorials and newspapers remain unaware of, or have chosen to completely ignore, the event. This is disappointing and depressing especially because it is an opportunity to ponder and reflect on the Court’s role and record at the helm of the world’s largest constitutional democracy. It is difficult for one blog post or column to make amends for that neglect. In what follows, I deal only with a few random reflections on the Court's anniversary. It is not too late for others to join me in this endeavour.

As a threshold matter, there is an unmistakable symbolism in the fact that our Supreme Court was created on 28 January 1950. Under a plan devised by our founders, the creation of an apex court was among the first official acts of the newly formed republic. Yet, the Court was not born on a clean slate. Rather, it was built over an existing foundation of laws and legal traditions that were distinctly colonial. The basic pillars of that colonial foundation were the high courts. The oldest of those high courts – the charter high courts of Bombay, Calcutta, and Madras – were established almost ninety years before the Supreme Court was inaugurated. These high courts were deeply influenced by British legal and judicial conventions. They decided cases by applying codes and statutes framed by English utilitarians and supplemented them with English common law. The high courts’ traditions were continued by the federal court established in 1937 pursuant to the Government of India Act of 1935, which formed the legal basis on which British ruled India during the last phase of their residency in the sub-continent.

Upon its creation, the Supreme Court adopted incorporated several distinct elements of the existing legal framework. After all, most of the Supreme Court’s early judges had served in British Indian high courts and the federal court or had had their legal training in England. Yet, the Court developed a distinct judicial character as an institution committed to upholding India’s constitutional demos. The early justices of the Supreme Court were largely uninvolved in the freedom struggle. But they were acutely were aware that they were operating under an autochthonous constitution – a rich brew with many foreign ingredients but stirred and served entirely by Indian barristas. Therefore, slowly, but surely, the Supreme Court began to invoke their extraordinary powers and significantly wide bases of jurisdiction under the Constitution to forge a unique judicial process for itself.

Our Court’s principal role is to interpret the world longest written constitution. As a constitutional court, the Court arbitrates and resolves disputes between different branches and institutions of government over the meaning and implications of the constitutional text. It also serves as the principal guardian of India’s bill of rights with the power to grant direct redress for infractions. Yet, our Court does not conform to Hans Kelsen’s model for an exclusive forum to resolve constitutional questions adopted in much of Europe. Our Court is both a constitutional court and an ordinary appellate forum. It hears both constitutional matters and ordinary cases. Recent research has revealed that there was a secret proposal floated in 1931 to establish two distinct apex courts for India. The federal court would handle jurisdiction for constitutional questions, while the supreme court would deal with other appeals and cases. But this proposal was resisted by Maurice Gwyer, who later became the Federal Court’s chief justice. Gwyer argued that establishing two distinct appellate bodies would impair the credibility and quality of both.

A second departure from the Kelsen-inspired European model of constitutional adjudication is that our Court does not enjoy the sole prerogative to interpret the Constitution. Rather, it shares its constitutional competence with the twenty-one high courts that are also empowered to identify and rule on constitutional questions. This has helped to mitigate differences in popular legitimacy between the apex court and the rest of the judiciary, a phenomenon frequently observed in other jurisdictions.

A fact often ignored by many scholars and commentators is that, unlike other appellate bodies including the US Supreme Court, our Court is not constrained by any federalism principles. Unlike our legislative and executive branches, the judiciary is a single, unified entity whose authority remains unpartitioned between the centre and the states. We have a single Supreme Court, which is not bound by the elaborate division of subject-matter competences between the Union and the states. On account of its wide appellate jurisdiction and its ability to directly deal with fundamental rights violations, the Court’s jurisprudence is rich and varied and its institutional history is so dramatic. As Bert Neuborne writes, it can justly lay claim to being among the most interesting and important constitutional courts.

At its normative core, our Court broadly reflects the German concept of Rechtsstaat -- a system of government based on law that guarantees equal protection for all citizens and where government decisions may be challenged in court. Yet, as Upendra Baxi dramatically announced in his classic, the Indian Supreme Court and Politics, our Court is, and as always has been, a distinctly political entity. Many Indian lawyers and if I may say with great respect, judges tend to react with great “shock and awe” at this assertion. However, it is hard to deny the fact that the Court’s decisions and rulings have greatly influenced Indian politics and public life and it, in turn, has been heavily affected by the political and electoral process. These are really two sides of the same coin, as Pratap Bhanu Mehta explains in his influential essay on the Indian judiciary. In my view, there are two key constitutional developments that led to this situation.

Under its original design, the Court was to operate under a system of checks and balances to prevent concentration of power in a single governmental institution. However, in an early case, Ram Jawaya Kapur, the Court argued that India’s constitution did not embody a strict Montesquieu-ordained system of separation of powers among the trinity of the legislature, executive, and judiciary. Instead, the Court reasoned that the Constitution called for only a broad separation of functions among the three branches. The Court also took the view that it was inevitable that there would be some overlap among functions exercised by each branch. In certain situations, it was possible that one branch could exercise prerogatives that naturally belonged to another. To my mind, it is this somewhat neglected idea of “fungible functionality” that constitutes one of the key theoretical underpinnings of the Court’s emergence as a key institution in Indian politics and life.

Besides endorsing the possibility of functional overlap, the Court in Ram Jawaya Kapur also noted that had India adopted the Westminster system of parliamentary governance. Under that system, although the cabinet or council of ministers constituted the executive branch, the ministers were also required to be members of the legislature where they enjoyed majority support. Quoting Bagehot without proper attribution (a disease so endemic in our judicial system), the Court likened this set up to “a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part.” As a consequence, the cabinet enjoyed virtual control of both legislative and executive functions.

Now, it was theoretically possible that the indirectly elected president could offer an inbuilt check against any potential for tyrannical abuse by an all-powerful cabinet. However, the Court effectively shut the door on that possibility in Shamsher Singh by holding that the president is a nominal head of the executive government. According to the Court, the president must exercise virtually all of her constitutional responsibilities only on the aid and advice of her council of ministers. The unarticulated major implication of this conclusion is that there is virtually no check on the powerful executive constituted, as it is, from the majority of the legislature. Acting on the Court’s ruling, parliament amended the Constitution in 1976 to emphasize the president’s titular nature. This meant that there was virtually no check against an executive that commanded an absolute majority in the legislature. Ironically, the Court later felt compelled to step into that void and resisted attempts by the executive to overreach.

The Court’s dominant role as a key national institution evolved over a period of time. During the first two decades of its existence when Prime Minister Nehru was in power, the Court largely stuck to its traditional role of adjudicating legal and constitutional questions in relatively positivist tones. The Court’s decisions, notably on free speech and property rights, did arouse some criticism. Judges were accused of being insufficiently attuned to the need for massive redistribution of land and the need for the state to control the commanding heights of the Indian economy. Parliament sought to overturn the effect of some judicial decisions by enacting amendments to the constitution. However, the Court largely remained out of the political thicket, so to speak, and most of its decisions were grounded in black-letter law and principles of textual interpretation.

This changed dramatically with the Court’s decision in Golak Nath in 1967. Clearly anxious about the future of India’s constitutional democracy in a post-Nehru era, the Court drew a line in the sand in Golak Nath over repeated attempts by parliament to interfere with its rulings. It declared that parliament was not competent to amend the fundamental rights enshrined in the Constitution. That decision – and some others that followed it – were much criticized especially in parliament and by many legal scholars. The government responded aggressively with a faux articulation of a socialist agenda. That agenda required, according to the government’s key spokesmen on the issue a “committed judiciary” or a set of judges devoted to the executive’s agenda rather than some abstract constitutional or legal theory. Ultimately, the Court was forced to overrule Golak Nath in Kesavananda Bharati. At the same time, the Court insisted on retaining some limitations on parliament’s amending power. Through its basic structure doctrine, the Court declared that parliament was incompetent to amend the essential or basic features of the Constitution. What those basic features comprise remains an ever-unfolding jigsaw puzzle.

Shortly after Kesavananda was decided, the Court faced an enormous institutional crisis. The Allahabad High Court set aside Prime Minister Indira Gandhi’s election in 1975 on largely technical violations of the election code. In response, Mrs. Gandhi imposed a national emergency in which she jailed political opponents and dissidents and suspended the courts’ power to enforce civil liberties. In a notorious acquiescence to the government’s position, a majority of the Court agreed with the government’s position and upheld the suspension of habeas corpus and other fundamental rights during the emergency. It was the Court’s darkest hour and one that stained its reputation considerably.

After the emergency ended, the Court sought to atone for its capitulation. It quickly unveiled its own “liberation theology” of the judicial function and constitutional rights. It reshaped the content of Indian constitutional law, particularly emphasizing the rights of the underprivileged and dispossessed. To quote Upendra Baxi, the Court began to take “suffering seriously” and encouraged the public interest litigation movement through which activists petitioned the Court to take up unorthodox causes and cases. The Court spoke up for residents of mental asylums, championed better conditions in Indian prisons, highlighted the plight of street dwellers, and strengthened the rights of criminal defendants and under-trials and those arrested.

During this time, the Court also fashioned the concept of “judicial independence” – the autonomy of courts from the legislature and the executive. Judicial independence is a value that the Court has emphatically asserted and assiduously transformed into a profession of Indian “constitutional faith” to use Sanford Levinson’s term. Invoking the powerful descant of “judicial independence,” the Indian Court boldly went to areas in which few of its cohorts dared tread. Besides declaring constitutional amendments unconstitutional, the Court scrutinized presidential actions, including the president’s power to pardon those on death row, arbitrated competing claims for political office, and campaigned against the influence of crime in politics and elections, and banned general strikes and smoking in public with a stroke of its mighty pen.

The Court reached the zenith of its influence in the early-to-mid 1990s, when India was ruled by minority and loose coalition governments. They operated within fractured and so-called hung legislatures and there was considerable political instability. During this time, the Court considerably expanded its jurisdiction and consolidated its powers. Its major decisions included the landmark Third Judges Case in which it radically reinterpreted the constitutional provisions on judicial appointments; the Indira Sawhney Case in which crafted a carefully balanced ruling on the use of affirmative action in government jobs; and the Bommai Case, in which it imposed restrictions on the federal government’s power to remove state governments for unconstitutional conduct.

In its Unnikrishnan decision, the Court considerably expanded the scope of the bill of rights to include a fundamental right to education, which in turn led to a national movement to recognize this right. And following that judgment, for almost a decade, the Court virtually managed technical and medical educational institutions across India -- setting fee structures, deciding which students would be admitted, and fixing dates and criteria for entrances examinations and tests. Finally, the Court engineered sweeping environmental reforms – shutting down polluting tanneries, imposing norms for beach-sites and coast lines, ordering massive environmental clean-ups, calling for improved standards in blood banks, and raising pollution standards for Delhi cars and buses. In these and other cases, I would argue, the Court bargained and largely secured for itself a position of "cohabitation" with the executive and legislature on important matters of governance and administration that affect the lives of the Indian people.

In recent years, the Court has become a large national clearing house for ideas, controversies, disputes, and dilemmas – both large and small – that arise in the daily hustle and bustle of India’s democracy. On some days, the Court resembles a big think tank where ideas and propositions are exchanged, debated, and discussed. But the Court is no ordinary think tank. Its power of the pen; its ability to enforce its orders and sanction non-compliance; and its power to punish for contempt give it enormous leverage to influence legislation, policy, and public debate. As Manoj Mate has pointed out, our justices often take advantage of elite opinions to mount extraordinary challenges to government authority. He points to the Vineet Narrain Case, where the Court effectively delinked the CBI’s single directive and indirectly contributed to the fall of Narasimha Rao’s government.

Yet, with all this power and influence, the Court is still a populist court with a real and direct impact on the lives of India’s billion people many of whom have become its loyal constituents. The Court’s “ideology of popular justice,” to use Neelan Tiruchelvam’s phrase, has left virtually no area of Indian life untouched. Through its central location and All India reach, I would argue that the Court has slowly begun fostering a strong sense of “constitutional patriotism” that Jurgen Habermas has advocated should displace ethnic nationalism. Moreover, with every intervention it makes, the Court builds expectations among a growing following, including the print and increasingly assertive electronic media, whom I might say, again, with respect, the Court has skillfully and assiduously courted. As a consequence, judicial intervention in matters important and mundane is widely accepted as part of the liberal la pence unique.

Even so, there are serious doubts expressed by well-meaning persons about whether the Court has the institutional capacity and practical competence to properly discharge its large number of functions. For instance, some sitting members of the Court have vociferously argued that the Court must put a halt to its judicial activism. In a stinging critique of the Court’s handling of forest policy, Armin Rosencranz argues that the Court’s micro-management has weakened the capacities of central and state environmental agencies and produced questionable jurisprudence. One also wonders what law-and-order jurisdiction the Court relied on to recently threaten the arrest of activists and derecognition of political parties blocking a highway to Sikkim.

At the same time, the Court has shrewdly played its cards even with respect to judicial activism and, as Pratap Bhanu Mehta puts it, it carefully reads popular and political tea leaves in making its decisions. For instance, taking note of public outrage, the Court quickly dismissed appeals from the convicted murderers in the famous Billa and Ranga Case and asked the president to expeditiously deal with their mercy petitions. Furthermore, in the area of national security and anti-terrorism, where the Court has consistently upheld draconian criminal and preventive detention laws that make significant departures from established criminal procedure requirements and constitutional protections. Here, the Court has chosen not to spend any political capital and largely ignored the gross human rights violations and abuses alleged to have been committed during counter-insurgency and military operations. And the Court was mostly uninvolved in some important constitutional controversies, such as whether Hindi should be the Union's sole official language; ironically it was the political process that ensured that English would continue to be used for official purposes even though the Court was the only major national institution to function entirely in English.

* * *

An anniversary is as much about the past as it is about the future. Therefore, as the Court enters its seventh decade, I would like to briefly reflect on some key challenges that it must confront if it has to improve its impact and effectiveness.

First, our Court needs to adopt more jurisdictional and prudential limits and resist the temptation to take more cases than it can adequately handle. For reasons too lengthy to elaborate here, I'm against the proposal to establish a separate constitutional court. Structural and institutional compulsions impede the Court from adopting the US Supreme Court’s en banc handling of every case. Our Court will have to continue to assemble in benches to hear and dispose cases. Even so, the Court could tighten its admission standards and take only those cases presenting a significant and pressing constitutional or legal issue. Perhaps, the Court could adopt a variation of the European subsidiarity principle by emphasizing the need for cases to be more thoroughly determined by high courts before they are taken up on appeal.

Second, the Court needs to strengthen the jurisprudential foundations of some of its leading doctrines and clarify limits. For instance, with respect to its leading doctrine of basic structure, the Court’s multiple rulings on the subject have rendered the core meaning of that doctrine hazy and inconsistently applied it to different context. In this area, the Court is -- to be borrow H.M. Seervai’s phrase from another context -- “wandering about in a maze of its own creation.”

As a related point, the Court now produces at least ten-eleven volumes of law reports every year. This is a lot for any court, especially the highest court in the land. Our Constitution says that the “law declared” by the Supreme Court shall be binding on all courts. What constitutes “law declared” is a Talmudic puzzle that would distract me from completing this already very long post. But the Court still declares a lot of law every year. This excessive amount of judicial wisdom is bound to result in some form of “system overload” sooner rather than later. It is, therefore, incumbent upon the Court to seriously reflect whether it can reasonably expect full compliance with the law that it declares especially if its annual output equals, if not exceeds, the legislation enacted by parliament and the states.

Third, as an institution, the Court is a judicial monastery comprising 30 judges headed by the Chief Justice of India. The Chief Justice is primus inter pares, i.e., first among equals, among the judges in judicial matters. He -- and Indian chief justices have only been men so far -- is also the pater familias of the sprawling Indian judicial system. Since 1993, the Supreme Court has adopted a practice under which the collegium comprising Chief Justice of India and a select group of senior judges play a decisive role in appellate judicial appointments. There are few other countries where the judiciary has this prerogative and, as the Dinakaran episode reveals, serious questions have been raised about the effectiveness and transparency of this arrangement. Sadly, this lack of transparency is reinforced by the Court’s apparent refusal to accept the Delhi High Court full bench ruling on the Right to Information Act. Last week's headline said it all: “SC to Appeal [To SC] Against HC.”

Finally, promoting diversity on the bench is a major challenge for the Court. It is acutely distressing that the present Court has not even a single woman on it. The Court also needs greater representation from Scheduled Castes and Scheduled Tribes, who have been historically under-represented on the Court, even though a blind quota system would be destructive to its cohesiveness and functioning.

(These views are expressed solely in my personal capacity and do not constitute the views of my employer).

3 comments:

psr5q said...

next post--is there judicial review in india?

Perakath said...

Great post; I really enjoyed it.

Vikram Raghavan said...

I agreed with a lot of what you said. However a few unvarnished comments:

1] Why did you avoid giving resons for supprting Gwyer? Much of your crticism on the operation of the SC (eg 10 to 11 volumes of judgments) is because of the number of judges.
“A lot of law” will continue as long as the SC speaks through 10 voices every day simultaneously on the same issues. Yet a number of Benches is necessary because of the volume of work. This can be avoided if Constitutional and other issues are decided en banc. We need a final court of fact given that many decisions impact central legislation procedural [eg Cr. P.C , CPC, Evidence Act] and substantive.
The solution lies in separating factual issues from Constitutional ones and separating the Courts.
I havent seen Gwyer’s opinion but I think it was based on the traditional British mould of judicial hierarchy with the House of lords as the last word on all issues. Secondly it may have been, more basely, dictated by considerations of his own pre-eminence being undermined.

2] I object to the use of “pater familias” in describing the CJI. In fact the CJI has no, repeat no administrative control over the High Court or the Subordinate Judiciary- a fact which the SC often chooses to ignore.

3]I don’t agree with implicit reservation for women or any other group in the appointment of judges. Leads to tokenism and incompetence at a level which requires effective contribution by every member.

4] An evil thought--do you think it possible that far from being concerned with the "lowliest and the lost" Public Interest litigation was encouraged to give judicial jurisdiction the appearance of a democratic basis?

Anusuya Ghose