Imperium in imperio?
Shylashri Shankar
We do not want to create an “imperium in imperio” and at the same time we want to give the judiciary ample independence so that it can act without fear or favor.
(Speech by B. R. Ambedkar, India, Constituent Assembly Debates,Vol. 8, Book 3, p. 397)
No court in the world—not the House of Lords, nor the US Supreme Court put together—has such vast jurisdiction, wide powers and final authority as the Indian Supreme Court.
(Iyer 1987), Our Courts on Trial,
New Delhi: B. R. Publishing, p. 38)
India’s supreme court is, to paraphrase George Gadbois, the “most powerful court in the world”, having virtually become an imperium in imperio, an order within an order. In the past two decades, the higher judiciary transformed constitutionally non-justiciable economic, and social rights to basic education, health, food, and shelter, among others, into legally enforceable rights.1 In a famous judgment giving all children the right to elementary education, the court said that a right could be treated as fundamental even if it were not present in the justiciable section of the constitution.2 According to economist Jean Drèze, the introduction of cooked midday meals in primary schools would not have happened without the supreme court cracking the whip. The Indian courts illustrate scholarly characterizations of this century as the global age of “decline and fall of parliamentary sovereignty,” the “global expansion of judicial power,” and even a “juristocracy.”3
How did India’s judiciary become so powerful? How does it use its power? Does it legitimate the majority coalition’s decisions, as American political scientist Robert Dahl4 famously said about the American supreme court? Or do the judges diverge from the ruling party’s political preferences as they discover and use broad powers of judicial review to constitutionally protect new rights? Have India’s courts strayed into legislative and executive space or have they played a supporting role to the other branches of the state? The chapter addresses these questions.
On 25 June, 1975, Prime Minister Indira Gandhi suspended Article 21 and imprisoned hundreds of people (mainly political opponents and members of civil society groups) under an executive order proclaiming a state of emergency. When these detentions were challenged, nine high courts rejected the constitutionality of the order. The supreme court, except for the lone dissenting voice of Justice Hans Raj Khanna, overruled the lower courts and, in the process, experienced a dent in its authority for allowing Indira Gandhi and her associates to violate the civil liberties of citizens.5 Legal scholars argue that the entry of courts into new domains was a redemptive move by the apex court to atone for its capitulation during the emergency.6 Most agree that the genesis of the judiciary’s activity on social rights can be traced to the immediate post-emergency era when Justices P. N. Bhagwati and Krishna Iyer evolved user-friendly approaches like public interest litigation (PIL).
I argue that the history of judicial activity in India is predominantly a story of judicial pragmatism rather than activism (defined as overturning laws), evident in the weak compliance mechanisms favored by judges who are aware of their dependence on political and bureaucratic wings of the state. The judiciary remains, to paraphrase political scientist Gerald Rosenberg, a hollow hope because of constraints imposed by institutional, ideological, and structural factors.7
The chapter first charts the path to power of the judiciary through an analysis of the constitutional role envisaged for (and appropriated) by the supreme court. I argue that the judiciary’s growing clout was a product of three factors: the ambiguity of the constitution on the extent of judicial power; a crisis of legitimacy induced by court-curbing moves of the executive in the 1970s, which coincided with a third factor, the fragmentation of political power in the 1990s.
The second section assesses the use by judges of their expanded powers. Scholars like Tate and Vallinder contend that among parliamentary democracies a high degree of party competition within the legislature tends to invite challenges from the judiciary because these systems produce weak governing coalitions.8 The evidence, culled from an analysis of judgments on religious freedom and social rights, suggests that the relationship between courts and political configurations in a parliamentary system is less coherent. Having appropriated the power of judicial review and independence through its own judgments,9 the court has struggled to find ways to exercise the power meaningfully.
I argue that the categorization of Indian courts as activist and over-activist are premature if we assess their track record in health and education. Like Choudhary and Hunter, I define activism in quantitative terms: the more decisions that find government actions unconstitutional, the more activist the courts.10 While the supreme court has expanded its power of judicial review, it has neither overturned laws frequently nor become a habitual policymaker. Rather, judges have preferred to adopt what Tushnet11 calls “weak remedies,” such as setting up committees and negotiation channels to deal with negligence by the state.The court’s reluctance to overturn legislative actions or even penalize the government stems from its institutional rules emphasizing restraint, confirmed in the words of a former justice that the higher courts “have unwittingly become conscience keepers of the status-quo except in exceptional cases.”12
The final section highlights the critical challenges faced by the institution. The irony is that the court’s power to have an impact on the lives of citizens rests with the same government and bureaucracy that judges and others chastise for having been negligent. In the last five years or so, because of structural and political factors, the judiciary (particularly the high courts) has become an overseer of governance, in addition to its task of balancing citizen’s rights with the state’s goals of social justice and harmonising relations with minorities. I argue that the recent spurt in judicial activity in areas reserved for executive and legislative actions is an alarming development that will undercut the court’s authority because of its inability to deliver on the content of the right.
The characteristics of a powerful judiciary include the authority to review legislation and relative immunity from political machinations. There are two sets of theories on how courts become powerful. Juristocracy theories argue that political elites transfer power to judges in hopes that they will be conservative and/or protective of rights.13 Conversely, others attribute judicial empowerment to the legal choices of judges.14 India’s experience validates the second theory; the supreme court seized autonomy by appropriating (through its judgments) the power to appoint itself; political elites did not transfer power to judges.
The Constitution of India (1950) established a federal republic with a parliamentary system, a strong central government and a unified judiciary under an apex court. The supreme court, which is on top of a three-tiered system, has original jurisdiction over disputes between the center and the states, and between states; appellate function over criminal and civil courts involving substantial questions of law; advisory functions on matters referred by the president; and special leave jurisdiction that allows it to hear any issue in politics, except for issues concerning the armed forces. At the intermediate appellate level, the high court stands at the head of a state’s judicial administration.15 The decision of the supreme court is binding on all courts in India (article 141) and non-compliance invites contempt of court. Litigants can also approach a parallel statutory system, the Lok Adalat (People’s Court), to resolve disputes in a conciliatory manner.
The constitution’s ambiguity on whether it explicitly endorsed parliamentary sovereignty, implicitly allowed judicial review, or did both arose from struggles in the constituent assembly (CA) on the best way to ensure a separation of powers among the executive, legislature, and judiciary.16 The CA ultimately emphasized balance rather than checks but agreed with the chairman of the drafting committee, B. R. Ambedkar, that the constitution had to walk the fine line between creating a Leviathan and giving the judiciary adequate power to act without fear or favor. The majority decided that the supreme court’s powers would be determined by law, i.e., those made by parliament rather than by the constitution, but left room for ambiguity on the extent of judicial scrutiny of legislation, the powers of the federal court, the appointments and removal process, and whether judges could take post-retirement jobs.
Scholars argue that federalism (which provides built-in opportunities for jurisdictional conflict), a written constitution (which provides judges with the basis for rights-based decisions), judicial independence, and a competitive party system (which could produce weak governing coalitions) all invite challenges from the judiciary.17 India has a federal setup, a written constitution, de jure judicial independence, and, in the late 1980s, shifted from one-party rule to coalition governments—all the structural conditions that can produce judicial review.
An empirical examination, however, shows that the court incrementally appropriated the power to review legislation irrespective of the political or structural conditions.The supreme court enshrined judicial review by creating a basic structure doctrine in 1973. The judgment, which was a response to the twenty-fourth and twenty-fifth amendments reducing the level of judicial review of legislation, held that parliament could not alter the basic structure or framework of the constitution—a structure that was undefined but knowable only by the court.18 This occurred when the Congress party had a dominant majority in parliament, and the executive exercised influence on judicial appointments. The basic structure doctrine has been called anti-democratic, used “mostly to protect judicial power” by giving the final say to an unelected body of judges.19
But the use of the basic structure doctrine in later judgments was “haphazard” and “not doctrinal or a general principle”;20 definitional problems plagued concepts like secularism, separation of powers, equality, rule of law and judicial review, which were seen as part of the basic structure.21 In S. R. Bommai vs Union of India, the court upheld the president’s authority, in the aftermath of the destruction of the Babri Masjid mosque in Ayodhya, to dismiss three elected state governments for failing to comply with the secular provisions of the constitution, but, as Rajeev Dhavan notes, a “clear judicial statement of what constitutes secularism continues to elude us.”22 The failure to evolve a consistent jurisprudence on the basic structure has become a recurrent theme in how the court exercises its powers.
The Indian experience also challenges the argument that strong single-party majorities produce weak courts. The supreme court fought with Prime Minister Jawaharlal Nehru’s government (a single-party majority government) in the 1950s and 1960s on the extent to which social reform legislation, including property and land reforms, could impinge on fundamental rights. After Nehru’s death in 1964, the judiciary clashed with the governments of Lal Bahadur Shastri and Indira Gandhi over populist measures such as the nationalization of banks and abolition of privy purses. The supreme court appropriated the power of judicial review through decisions in the Golak Nath, bank nationalization and privy purses cases.23 In response, and unlike her father, Indira Gandhi set out to pack the court with “committed judges,” prompting legal analysts to hark back wistfully to the Nehruvian era as a period when the court cautiously expanded its own authority while maintaining a balance of power with the other two branches. In the cabinet, Nehru had successfully fought against the worst anti-judiciary sentiment, saying that a socialist program could be pursued without striking at the judiciary’s roots.24
The court’s growing clout evolved from clashes with parliament over the extent of judicial review of some of the 104 constitutional amendments. The first amendment inserted a ninth schedule into the constitution, providing that any law placed in the schedule would be immune to challenges asserting violation of fundamental rights. The parliament got into the habit of inserting controversial laws in this schedule which, as Granville Austin (1999) points out,25 would develop into a predilection for undermining judicial powers broadly and even attacks on the judiciary as an institution during the prime ministership of Indira Gandhi (1966–77; 1980–84).26 But, as Sathe rightly notes, the Supreme Court exercised “maximum restraint” in using the basic structure doctrine against constitutional amendments and was “reticent” in striking down an amendment.27
Judicial review was severely curtailed by the Indira Gandhi regime in the period preceding and during the emergency (1975–77). The forty-second amendment in 1976 excluded constitutional amendments from the purview of judicial review.
The judiciary had some respite during the Janata Party coalition (1977–80), which offered return transfers to those judges who had been summarily transferred during the emergency and reinstated the convention of appointing the most senior judge as chief justice. Emboldened by these moves, the court reasserted judicial scrutiny (assessed against the basic structure doctrine) of amendments and laws inserted into the ninth schedule after 24 April, 1973 (the date of the Kesavananda judgment), saying that the constitution allowed parliament only “limited amending power.” 28 In 2007, a nine-judge constitution bench reiterated the right of the court to review the law in the ninth schedule.29 Although several legal observers and the media criticized the ruling “for weakening constitutional protection given to progressive laws” and having devastating results for judicial accountability, the court’s self-aggrandized power of judicial review is now firmly part of the basic structure of the constitution.30
The apex court’s judgments seizing independence in appointments coincided with the fragmentation of political power in parliament as minority and coalition rule became the norm. Judicial independence refers to the autonomy of courts (institutionally and personally) from political influences.
India’s courts had some degree of institutional autonomy written into the constitution. Only parliament has the power to remove high court and supreme court judges; no judge has been impeached so far.31 The constitution empowered the president (acting on the advice of the prime minister and cabinet) to appoint judges of the supreme court and the high courts, after consultation with the CJI and CJs of the lower courts (articles 124 and 217). But consultation did not mean concurrence of the CJI, since it was “a dangerous proposition” to allow the CJI “a veto” because it would amount to a “transfer of authority.”32
Initially, judges agreed with Ambedkar’s intent to keep the judiciary from appointing its own members. When the Congress party led by Indira Gandhi returned to power in 1980, several high court judges were transferred, while the renewal or non-renewal of tenures of others was rumored to have involved political considerations. Petitions questioning these transfers were decided in the first judges case: a four-judge majority held that a judge’s consent was not necessary for his transfer but that such transfers ought not to be punitive, and that the CJI’s concurrence was not mandatory.33
A decade later, a majority led by Justice Verma reversed the ruling by holding that the CJI’s views on appointments and transfers must be supreme for independence and separation of powers to operate.34 The third judges case outlined the process of consultation, which now included the CJI and four of his most senior colleagues.Thus, structurally, the Indian supreme court made itself virtually independent of the executive and legislature with regard to entry procedures.35
However, the extent of political influence on the judiciary depended on the strength and predilections of the prime minister. During Nehru’s leadership, the executive “by and large respected the wishes of the Chief Justice,”36 who had “virtually a veto over appointments, a result of the conventions and practices of the time, and the Chief Justice’s strength of character.”37 But Indira Gandhi even abandoned the seniority convention in choosing a chief justice in 1973 and 1977.38 The selection process allegedly involved “communal and political considerations,”39 leading to “havoc with judicial decisions in crucial and sensitive cases.”40 Some of the judges appointed during the Janata regime “would not have sat on the bench had the Congress (I) been in office at that time and vice versa.”41
So, when the political actor was strong (single-party majority), prepared to take on the courts, and had a policy agenda (as Indira Gandhi’s government did), the supreme court was more constrained by the political milieu. When the political actor was strong and had a policy, but was not prepared to strike at the court’s autonomy (the Nehruvian regime), or if there was a weak governing coalition/ minority government (post-1988 governments), the supreme court had more room to maneuver. A variation on this is that single party-dominated political systems will accord courts less independence because of the governing party’s expectation that it will continue to win elections, whereas competitive parties favor greater judicial independence in order to preserve a party’s legislative gains made while in office after it has lost power.42 This could explain why the 1977–80 Janata Party (coalition) government removed some of the court-curbing amendments of the previous government, emboldening the court to reintroduce due process in 1978, and appropriate vast powers over administrative action. Even the timing of the judgments that expanded judicial autonomy over the appointments process came during minority and coalition governments in 1993 and 1998. But the expanded autonomy for judges did not imply that they would support social rights; in fact, one study shows that judges were more conservative on the rights to health and education after 1993.43
Even after the court seized the power to appoint its members, the political branches continued to retain influence through the power to allot post-retirement jobs.44 According to a retired judge, the court favored the state in the Prevention of Terrorist and Disruptive Activities Act (TADA) 1985 cases because a district judge on the verge of retirement could be appointed by the government (with the CJ’s consent) to hear the case in the relevant court, thus allowing him to continue working even after retirement. “One who is obliged to the state by extension beyond superannuation is less than impartial in a ‘terrorist’ trial.”45 This is partly substantiated by data on TADA and preventive detention cases where almost all appeals to the Supreme Court had the state as a defendant, implying that the state won in the lower courts.46
The judiciary’s decision-making process emphasizes collaboration and seniority, thus making it difficult for us to gauge the effect of political influences.47 Institutional rules such as short stints of four to six years at the apex court prior to retirement at the age of 65 deter sustained clashes with the government.“Institutional accommodation is crucial for preservation of democratic rights; attempts to preserve rights at the cost of endemic conflict between the executive, legislature, and the judiciary are, according to Chief Justice Chandrachud, self defeating,” a statement that sums up the attitude of the post-emergency supreme court.48 Overt dissent is low, because of fragmented bench structures of decision making (two and three judge panels), the norm of assigning opinion writing responsibiliy to a senior judge, quick rotation of judges on different panels, and heavy workload.49
It is debatable, however, whether executive interference in appointments before 1993 actually occurred for a vast number of cases and reduced the quality of judges.50 The author’s analysis of the biographies of 116 supreme court judges from 1950–2005 shows that over 50 percent had worked for the state government at some point prior to their induction in the high court, but less than half (46 percent) had worked for a state or central government just prior to their induction into the high court. Over 72 percent of supreme court judges had served in the high court for 11–16 years, indicating that those elevated to the supreme court were senior judges. What has the court done with its powers?
In 1985 the supreme court played a key role in the clash between two constitutional rights: religious freedom (articles 25–30) and gender equality (articles 14 and 15 on equality and nondiscrimination) through a ruling that privileged civil law over religious laws. India allows citizens to choose between religious and civil laws in matters relating to personal law issues of marriage, divorce, inheritance, and adoption. Muslims can choose to marry under sharia law, Hindus under the Hindu Marriage Act 1955, and so on.The court issued a ruling in the Shah Bano case giving Muslim women the right to receive maintenance (available to non-Muslim women under civil laws) even if they had married under Muslim religious laws.51
Like the Dreyfus affair in late nineteenth-century France, the Shah Bano case became a lodestone for warring groups. The Congress party-dominated parliament immediately passed the Muslim Women’s (Protection of Rights on Divorce) Act in 1986 reversing the Shah Bano ruling, drawing protests from feminist groups and jubilation among Muslim religious leaders. The act provided Muslim women “a reasonable and fair provision of maintenance” at the time of divorce but forbade them to appeal to Section 125(8) of the Criminal Procedure Code for such maintenance unless their husbands consented to it. Lower court judges (later endorsed by the supreme court) interpreted the new act in ways that awarded Muslim divorcees large lump sums that would maintain them for a lifetime, showing that the concerns of the act’s opponents were unfounded.52
Muslim religious leaders were particularly incensed with the CJI’s call for legislating an uniform civil code (UCC), which was in the directive principles, the non-justiciable section of the constitution. They saw the court’s recommendations, which were made in reference to national integration, as an attack on Muslim law, and as implicitly creating the fiction that Hindus were governed by a secular and egalitarian code. But as Agnes points out, the court’s attitude towards bigamy by Hindus has been lax.53 Scholars have also questioned whether the enactment of a UCC can itself bring about gender equality.54 However, judges have not given up on the UCC; in October 2007, the supreme court set a new deadline for states to frame rules making the registration of marriages compulsory.
As several scholars point out, the judiciary thus played a negative role through its bias in favor of Hindu laws in the UCC debate, a controversial role in the Shah Bano case where it privileged group interpretations at the cost of individual rights, and a positive role in its interpretations of the 1986 Act allowing Muslim divorcees to gain the substance of their rights. The supreme court has been “high sounding” in the area of group rights such as affirmative action, gender justice and personal laws, while “adroitly avoiding a too courageous pursuit” of egalitarian social justice.55 We see a similar pattern in the domain of social rights where judges have struggled to reconcile their power with effective delivery of the substance of the right.
The often-cited cases of judicial activism pertain to judgments from the 1980s onward, transforming several directive principles such as the right to a clean environment, health, education, shelter, among others, into fundamental rights through an expanded notion of the right to life (article 21).57 These judgments came in the wake of innovations like public interest litigation (PIL), which allow citizens and NGOs to appeal directly to either the high courts or the apex court.58 Sathe argues that post-emergency judicial activism, which was the liberal interpretation of articles 21 (right to life) and 14 (right to equality), reconceptualized the basic rules of the judicial process with a view to making it more accessible and participatory.59
Indian judges have not been activist in health and education, and even on environmental issues if we define activism as finding government actions unconstitutional. Instead, the judiciary played a more supportive role in line with its inherent tendency to avoid conflict with the government. Most of the judgments legalizing social rights came in the wake of the emphasis—and legislation—on redistribution and social justice. For instance, in 1971 and 1976, Mrs Gandhi’s government amended the constitution to force the courts to take more notice of the directive principles.60
Judges focused on making the government perform its statutory tasks and highlighted legislative actions as the basis for the shift towards justiciability of some social rights. Our data on compliance mechanisms in 384 judgments in health and education show that judges were more likely to prefer committee-style collaborative measures (rather than strong penalties) to elicit actions from the government. The government complied with the court’s directives in high-profile cases such as those pertaining to clean air in Delhi or the use of safe water by cola companies, but most other cases and complex issues involving multiple agencies such as public sanitation and administration of hospitals were left unresolved. Even when the court instituted time limits, enforcement depended more on monitoring by litigants, such as the NGOs, for a right to food and education. Not surprisingly, the court’s impact on a citizen’s ability to enjoy the substance of the right was low. Despite judicial support, the right to food campaign is looking beyond legal tools to carry out and sustain its work because of the manpower and funding needed for litigation. Judges were aware of the disconnect between their directives and the propensity for compliance or noncompliance by the government, but could do little about it.61 Even when the judgments found fault with the government, the phrases employed were “unfortunate,” “policy matter,” “conscious attempts must be made to increase budgetary allocations,” “moral and social obligation of the state,” and the like.62
The judiciary thus had a strong impact on the legal dimension of social and economic rights. Judges had a selectively significant impact on some policies such as those that expanded free access to anti-retro virals (ARVs) for AIDS patients, created a right to food, enabled anti-pollution policies in Delhi, provided part of the justification for an education guarantee scheme, and helped create new regulatory mechanisms for blood banks and for processing medical negligence claims. But such contributions were not tantamount to judges becoming policymakers since, for the most part, the institution or government acted only when it was ready to do so, not because the court demanded it.The constitutional right to education was introduced ten years after the judgment. The judiciary had the weakest impact in ensuring the effective delivery of these rights, leading us to the question whether the judicial arena provides the best site for improving the realization of social rights.
Overloaded dockets arising from the vast jurisdiction, inadequate staff, and funding, have compromised the capacity of the court to deliver prompt justice. The supreme court’s docket had 2,614 cases in 1951 (67 percent disposal rate), registered a spike in 1977 with 30,168 cases (34 percent disposal rate), 139,796 cases in 1985 (36 percent disposal rate), and 80,691 cases in 2005 (57 percent disposal rate).63 One report estimates that 24 million cases are pending in different courts, with high courts producing the biggest bottlenecks.64 Persistent vacancies (with levels reaching 30 percent in Delhi over the last 12 years in district and subordinate courts) and the tendency of judges to allow adjournments without valid reasons add to the delay.65
Corruption in the judiciary is another source of concern. One retiring chief justice provided a shocking indictment of India’s judges, saying that more than 20 percent of judges were corrupt.Among the causes of corruption are the low pay scales of the subordinate judiciary. In December 2006 the cabinet approved a bill to amend the Judges Inquiry Act and create a national judicial council that would examine all complaints of corruption and misdemeanors against judges. But the problem is that judiciary will police itself, thus creating only an “illusion of accountability.”66
However, as Baxi points out, it is unfair to put all the blame on judges; the state, lawyers, and litigants also have to shoulder some of the responsibility. With a ratio of just 10.5 judges per million population, when at least 50 judges are required, it is not surprising that there are tremendous delays in lower courts. Contrast this with the US, where there are 107 judges per million citizens. Only 0.2 percent of the GNP is spent on the judiciary. The Malimath Committee, and more recently the supreme court directed the state governments to fill vacancies in subordinate courts by 31 March, 2003 and increase the number of judges to 50 per million citizens by 2007.67 Unfortunately, the deadline has not been met.
Scholarly studies and newspaper reports give us contradictory images of the judge: activist, political, confrontational, policymaker, corrupt, apolitical, impartial, and inefficient. Our analysis shows that they are not the puppets of political masters, but neither are they strategists nor idiosyncratic. Rather, Indian judges are more likely to engage in a constant process of negotiation with their identities as judges, citizens, and as members of a state institution.
Rosenberg’s view that constitutional rights are more likely to be implemented if they reflect the preexisting beliefs of politicians, policymakers and the public is an apt characterization of the actual power of the Indian judiciary. “Courts do not exist in a vacuum. Supreme court decisions, even those finding constitutional rights, are not implemented automatically or in any straightforward or simple way.They are merely one part of the broader political picture. At best, they can contribute to the process of change. In and of themselves, they accomplish little.”68 The Indian Supreme court’s effect on policy has been indirect for the most part. Even the “right to education” that the court articulated in a 1992 judgment became a constitutional amendment only after it appeared as an election promise of a political party and was finally passed ten years later. The Indian experience reinforces the theoretical and empirical evidence from other countries that there is no intrinsic link between judicial independence and the expansion of rights.69
So what does our report card say about the Indian judiciary? First, though Sathe70 is right that the Indian supreme court has moved beyond the traditional separation of powers approach, the evidence from social rights litigation suggests that, until recently, the judiciary neither appropriated a policymaking role nor was it activist in the sense of overturning laws. Even in environmental cases, the court provided temporary solutions, while nudging the government to address pressing issues such as cleanliness in cities.The allocation of cases by the chief justice, lack of enforcement capacity, the emphasis on collaboration rather than dissent in the two- or three-judge panels encourage conformity and status quo behavior by judges.
Second, the relationship between courts and political configurations in a parliamentary system is less coherent than is commonly assumed. When the political actor was strong (single-party majority), prepared to take on the courts (as Indira Gandhi did), and had a policy agenda, the supreme court was more constrained by the political milieu. If the political actor was strong and had a policy, but was not prepared to strike at the court’s autonomy (the Nehruvian regime), or if there was a weak governing coalition/minority government (post-1988 governments), the supreme court had more room to maneuver. But the judges predominantly played a supporting role to the government.71
Third, theories of legal mobilization rightly argue that the emergence and strength of support structures within civil society enable a rights revolution,72 provide critical support to the courts against a belligerent executive,73 but also constrain the court’s potential contribution in the area of civil rights and liberties.74 The low rates of litigation by NGOs and the minimal use of PILs in these sectors confirm the argument by Epp that social rights litigation (except environmental cases) lacks the support structures for a full-fledged rights revolution in India. Other studies show that India’s higher judiciary at best provided temporary solutions to complex problems of public health and primary education, but were more effective on simpler issues dealing with government regulation of private providers and obligations of private providers to citizens.75 The higher courts often used declaratory language that focused on the strength of the right rather than the remedies.
The evidence raises concerns about whether the court is the right arena to ensure the provision of social goods. Judges are not qualified to assess the implications of their judgments. For instance, a recent interim ruling by the supreme court allowing a pharmaceutical policy that facilitated government intervention when prices of essential drugs behaved abnormally was interpreted by the government as allowing a drug price control policy. Even PILs have come under a huge strain; the Prime Minister cautioned the bench that PILs could not become vehicles for settling political or other scores.76
While the courts have been used in the past by India’s political elites to decide thorny political issues such as the beneficiaries of affirmative action, the recent decade has increased this propensity—in line with the global trend—of promoting judicial intervention and even policymaking to avoid responsibility for controversial decisions.77 Plagued by fractured political support and squabbling coalition partners, the executive and legislature have shifted the burden of governance to the judiciary. The judges seem willing, and even justify their intervention on grounds of growing lawlessness and ineffective administration. But the court would do well to heed the words of Justice Pathak that “it possesses the sanction of neither the sword nor the purse and that its strength lies basically in public confidence and support, and that consequently the legitimacy of its acts and decisions must remain beyond all doubt.”78 Judicial intrusion may be well motivated, but the resulting workload, the incapacity of the judiciary as an institution to make policies, the stop-gap nature of the solutions devised by courts, and the destabilizing campaigns initiated by the political branches may overwhelm the judiciary.
1 The Indian constitution distinguishes between justiciable fundamental rights and non-enforceable directive principles; see H. M. Seervai, Constitutional Law of India, 3rd edn (New Delhi: N. M. Tripathy, 1983); and B. N. Rau, India’s Constitution in the Making (Bombay: Orient Longmans, 1960).
2 Unnikrishnan vs State of AP (1993) 1 SCC 645.
3 C. Neal Tate and Torbjörn Vallinder, “The Global Expansion of Judicial Power: The Judicialization of Politics,” in C. Neal Tate and Torbjörn Vallinder (eds), The Global Expansion of Judicial Power (New York: University Press, 1995), pp. 1–24; Ran Hirschl,Towards Juristocracy —The Origins and Consequences of the New Constitutionalism (Cambridge, MA: Harvard University Press, 2004).
4 Robert Dahl, “Decision-Making in a Democracy:The Supreme Court as a National Policy-Maker,” Journal of Public Law, Vol. 6, No. 2 (1957), pp. 279–95.
5 ADM Jabalpur vs Shiv Kant Shukla (1976) 2 SCC 52.
6 Upendra Baxi, “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India,” in R. Sudarshan et al. (eds), Judges and the Judicial Power (Bombay: Tripathi, 1985); S. P. Sathe, Judicial Activism in India (Delhi: Oxford University Press, 2002).
7 Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991). For a similar argument on the pragmatic bent of India’s judiciary, see Pratap Bhanu Mehta, “India’s Judiciary,” in Devesh Kapur and Pratap Bhanu Mehta (eds), Public Institutions in India (New Delhi: Oxford University Press, 2005).
8 Tate and Vallinder.
9 Pratap Bhanu Mehta, “India’s Judiciary,” in Devesh Kapur and Pratap Bhanu Mehta (eds), Public Institutions in India (New Delhi: Oxford University Press, 2005).
10 Sujit Choudhary and Claire E. Hunter, “Measuring Judicial Activism on the Supreme Court of Canada: A Comment on Newfoundland (Treasury Board) V. Nape,” McGill Law Journal, 48, 2003.
11 Mark Tushnet, Symposium: “Constitutional Courts in the Field of Power Politics: Social Welfare Rights and the Forms of Judicial Review,” Texas Law Review, Vol. 82 (2004).
12 V. R. Krishna Iyer, Our Courts on Trial (New Delhi: B. R. Publishing, 1987), p. 144.
13 Hirschl.
14 Tate and Vallinder.
15 Apart from writ jurisdiction, the 21 high courts have jurisdiction over all lower courts in its territory. There are 3,150 district level courts, 4,816 munsif/magistrate courts and 1,964 magistrate II and equivalent courts at the bottom of the integrated judiciary. Arnab Kumar Hazra and Bibek Debroy (eds), Judicial Reforms in India— Issues and Aspects (New Delhi: Academic Foundation, 2007).
16 Sathe, p. 39; Susanne Rudolph and Lloyd Rudolph, In Pursuit of Lakshmi (Chicago, IL: University of Chicago Press, 1996).
17 Tate and Vallinder, p. 30.
18 Keshavananda Bharati vs State of Kerala,AIR (1973) SC 1461.
19 Raju Ramachandran, “The Supreme Court and the Basic Structure Doctrine,” in B. N. Kirpal et al. (eds), Supreme But Not Infallible (Delhi: Oxford University Press, 2000), pp. 107–33.
20 Mehta; Gary Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional Perspective (Princeton, NJ: University Press, 2005).
21 Bommai vs Union of India (1994) 3 SCC 1, IR Coelho (dead) by LRs vs State of Tamil Nadu and Ors (2007) 2 SCC 1.
22 Rajeev Dhavan, “The Supreme Court and Group Life,” in Kirpal, p. 275.
23 In the Golak Nath case, a 6:5 majority held that parliament was not competent to amend the chapter on fundamental rights; in the Bank Nationalization Case, the majority held that the right to property was a very important fundamental right; the Privy Purse Case held that the claim to receive a privy purse was part of the right to property; and the Kesavananda Bharti Case outlined the “basic structure of the constitution doctrine”; Gobind Das, “The Supreme Court: An Overview,” in Kirpal.
24 George Gadbois,“The Supreme Court of India as a Political Institution,” in R. Dhavan et al. (eds), Judges and the Judicial Power: Essays in Honour of Justice V. R. Krishna Iyer (London: Sweet & Maxwell and Bombay: N. M.Tripathi, 1985).
25 Granville Austin, Working a Democratic Institution; The Indian Experience (Delhi: Oxford University Press, 1999).
26 Two hundred and eighty-four laws were inserted into the ninth schedule up to 2007, of which 217 were enacted after 1973.
27 Sathe, p. 88.
28 Minerva Mills vs Union of India (1980) 3 SCC 625, para 22, Waman Rao vs Union of India (1981) 2 SCC 362.
29 IR Coelho (dead) by LRs vs State of Tamil Nadu and Ors (2007) 2 SCC 1.
30 V. Venkatesan, “Judicial Challenge,” Frontline (9 February, 2007).
31 Even investigations into judicial conduct cannot occur without prior written consent of the CJI, who will not consent unless there is clinching evidence, which the police cannot get unless they investigate.
32 B. R. Ambedkar, CA Debates,Volume 8, Book 3, p. 258.
33 S. P. Gupta vs Union of India, AIR (1982) SC 149.
34 Supreme Court Advocates on Record Association vs Union of India (1993) Supp 2 SCR 659. For a critique, see Lord Cooke of Thorndon,“Where Angels Fear to Tread,” in Kirpal.
35 See Rajeev Dhavan, Justice on Trial:The Supreme Court Today (Allahabad: Wheeler, 1980); and Vijay K. Gupta, Decision Making in the Supreme Court of India (Delhi: Kaveri, 1995) for detailed analyses of decision making in the supreme court.
36 Gupta, p. 37.
37 Austin, p. 125.
38 On 25 April, 1973, Justice Ray was appointed CJI, superseding three senior judges (Shelat, Hegde, and Grover), who subsequently resigned. In January 1977 Justice H. L. Khanna was superseded for dissenting in the habeas corpus case.
39 Iyer, p. 13.
40 Lawyer Indira Jaising, quoted by Iyer, p. 16.
41 Iyer, p. 30. This practice is the norm in the USA where supreme court judges are political appointees.
42 Mark J. Ramseyer, “The Puzzling (In)dependence of Courts: A Comparative Approach,” Journal of Legal Studies, Vol. 23 (1994), pp. 721–47 and J. Mark Ramseyer and Eric Rasmusen,“Judicial Independence in Civil Law Regimes: Econometrics from Japan,” Journal of Law, Economics, and Organization, Vol. 13 (1997), pp. 259–86.
43 Shylashri Shankar, Scaling Justice: India’s Supreme Court,Anti-Terror Laws and Social Rights (Delhi: Oxford University Press, 2008).
44 Supreme Court judges retire at the age of 65, high court judges at 62.
45 Iyer, p. 64.
46 Shankar.
47 Order VII of the Supreme Court Rules.
48 Baxi, p.81.
49 Gupta, p. 147, reports that the two major dissenters between 1973–81 were Justice Bhagwati (seven dissents), and Justice A. P. Sen (six dissents).
50 Mehta, p. 176, points out that a government affidavit in 1993, filed in the second judges case, noted that, of 575 appointments, the government had rejected the chief justice’s opinion in only a handful of cases; also see Gupta.
51 Mohd. Ahmad Khan vs Shah Bano Begum, AIR (1985) SC 945
52 Arab Ahmadhia Abdulla vs Arab Bail Humuna Saiyadbhai, AIA (1988) Guj 141 and Daniel Latifi vs Union of India, AIR (2001) SC 3958.
53 Bhaurao Lokhande vs State of Maharashtra, AIA (1965) SC 1564 and Sarla Mudgal vs Union of India (1995) SCC 635.
54 Upendra Baxi, “The Rule of Law in India,” SUR – Revista Internacional de Direitos Humanos, Vol. 6, No. 4 (2007).
55 Dhavan, in Kirpal, p. 274.
56 This section is based on an analysis by the author of 384 judgments in the higher courts on the “rights to health/education.”
57 Article 21 states that no person shall be deprived of his life or personal liberty except according to the procedure established by law.
58 Common law systems (adversarial) permit only a person whose rights are directly affected to approach the court. The PIL, which is non-adversarial, allows any member of the public acting in a bona fide manner to espouse public interest causes by sending a letter or petition to the supreme court in case of a violation of a fundamental right (article 32), and to the high court for violations of legal rights (article 226).
59 Sathe, pp. 100 and 107.
60 Dhavan, Justice on Trial, p. 128.
61 Koolwal vs State of Rajasthan,AIR (1988) Raj 2.
62 Ravindra Kumar, Advocate and Anr vs State of UP (Writ Petition M/S 1746 of 1998, Allahabad HC).
63 Supreme Court Registrar under an RTI request from the author.
64 Eighty-fifth Report of the Parliamentary Standing Committee on Home Affairs on Legal Delays.The high courts of Allahabad (800,000), Madras (650,000), Kerala (300,000) and Bombay (240,000) were the worst offenders.
65 Hazra and Debroy.
66 Prashant Bhushan, “Judicial Accountability or Illusion?” Economic and Political Weekly,Vol. 46, No. 47 (25 November, 2006), pp. 4,847–48.
67 All India Judge’s Association vs Union of India (2002) 4 SCC 247.
68 Gerald N. Rosenberg, “The Real World of Constitutional Rights: the Supreme Court and the Implementation of the Abortion Decisions,” in Lee Epstein (ed.), Contemplating Courts (Washington, DC: CQ Press, 1995), p. 417.
69 Tamir Moustafa, “Law versus the State: The Judicialization of Politics in Egypt,” Law & Social Inquiry,Vol. 28, No. 4 (Fall, 2003), pp. 883–930; Hirschl; Ceren Belge, “Friends of the Court: The Republican Alliance and Selective Activism of the Constitutional Court of Turkey,” Law and Society Review,Vol. 40, No. 3 (2006), pp. 653–92.
70 Sathe, passim.
71 Also see S. Muralidhar, “Implementation of Court Orders in the Area of Economic, Social and Cultural Rights: An Overview of the Experience of the Indian Judiciary,” First South Asian Regional Judicial Colloquium on Access to Justice, New Delhi, 1–3 November, 2002.
72 Charles Epp, The Rights Revolution (Chicago, IL: University of Chicago Press, 1998).
73 Moustafa.
74 Belge.
75 Shankar, Scaling Justice.
76 Indian Express, 7 April, 2007, “Line Dividing Activism and Over-reach is a Thin One: PM’s Caution to Bench.”
77 Tate and Vallinder; Hirschl.
78 Justice Pathak, in Bandhua Mukti Morcha vs Union of India (1984) 3 SCC 161 76.