SC’s Constitutional Coup: Ambedkar’s Finely Crafted Balance Of Power Is Gone

Over the last few years, and quietly since the 1990s, the Supreme Court has indirectly made out a case for a benevolent and populist dictatorship: itself.

As it intervenes in more and more areas of policy, law-making, policing and regulation (yesterday it wanted to have a go at banks’ bad loans problem), the court has taken on powers never envisaged by our constitution-makers. It has upset the delicate balance of power between executive, legislature and judiciary.

The police and the bureaucracy are accountable to the executive, the executive is accountable to the legislature, and the legislature is accountable to the people, but who is the judiciary accountable to? This is what makes it a “benevolent dictator” of sorts when it takes on roles that go beyond interpreting the law.

A “benevolent” dictator is one who appoints himself to power (it could be through a coup or any other means not prescribed in the law). He rules basically by making out a case that elected politicians are untrustworthy and corrupt, that the whole system is dysfunctional, that an impartial (but unelected) ombudsman can do the right things instead of being guided by vested interests, as he can appoint competent people to jobs without fear or favour, etc, etc.

All populist dictatorships derive their legitimacy from being seen as doing the right things. Pakistan’s army has repeatedly staged military coups using the unpopularity of elected politicians as an excuse. It has often been welcomed by the public for it.

Now consider the case of the Indian Supreme Court.

It is unelected and largely unaccountable to anyone. It appoints its own judges and they can’t be removed easily.

Thanks to Indira Gandhi’s internal emergency, when the government made the judiciary subservient to itself, the Supreme Court - through two judgments in 1993 and 1998, called the second and third judges cases – arrogated to itself the job of appointing upper judiciary judges. Governments could protest, but could do nothing if they didn’t like the judiciary’s choices. The executive’s role has been reduced to that of the typist who composes the appointment letter.

These judgments were in clear violation of the spirit of article 124 of the constitution which says that the President (i.e, the government) shall appoint judges to the higher courts in consultation with the Chief Justice and/or other judges. When the NDA government, with near unanimity in parliament, tried to claw back some of its old powers by enacting the National Judicial Appointments Commission (NJAC) Act 2014, the Supreme Court shot it down. It killed a law where it was itself an interested party when it could have read down the provisions which could have dented its independence.

So the first point, that the judiciary is effectively its own appointing authority, is clear. It has staged a constitutional coup. It is also effectively accountable to no one but itself, since the procedure for removal is so difficult under article 124 (4). Both houses of parliament must impeach a judge for “misbehaviour or incapacity” with a two-thirds majority – two charges that are difficult to prove in the first place, leave alone cobble together a two-thirds legislative majority in both houses that are not known to work effectively with each other. Fact is that since independence not a single judge has been removed via this procedure.

But more insidious is the way in which the Supreme Court has inserted itself into decisions that are in the domain of the executive or the legislature or both.

Yesterday (12 April), the Supreme Court came close to telling the Reserve Bank of India how it should run its business, and it seems likely that it will now influence the handling (or mishandling) of banks’ bad loans. After perusing the list of loan defaulters submitted by the RBI in a sealed envelope, the Supreme Court bench headed by Chief Justice TS Thakur, asked: “Are you not supposed to keep vigil? Is RBI not supposed to maintain information and act on how public sector banks are advancing loans? These banks are supposed to act prudentially but if they have been doing it by flouting norms and without ensuring adequate assets as securities, are you not supposed to take actions against them? RBI is the regulator… you must act as a watchdog.”

According to a report in The Indian Express, which had earlier reported on the amounts banks were forced to write off, the bench has decided to “enlarge the scope of this matter and we will decide it. It is quite a substantial amount which is involved. We need to be satisfied what requires to be done.”

While there is no doubt that banks have been excessively imprudent during the UPA years, lending right and left under political pressure, is it the job of the Supreme Court to tell the RBI or the finance minister what to do with bad loans or how to regulate banks or how to get the money back from defaulters?

In recent years, the Supreme Court has been repeatedly foraying into executive and legislative terrain, directing action, making laws, supervising investigations, or generally directing governance. Consider just this partial list:

#1: The court directed the government to appoint a Special Investigation Team (SIT) to chase black money, and this team reports to the court. Is supervising investigations the job of the court, except in extraordinary cases?

#2: It has banned the registration of higher end diesel cars in Delhi, and imposed levies on trucks entering the National Capital Region when there is an elected government in place to do this. Is it the job of the court to decide which vehicles will be sold or registered in any city? In doing so, it has effectively introduced new elements of uncertainty in business. It has become law-maker and regulator.

#3: A year ago, the court directed all governments – centre and states – to stop using the pictures of CMs and other ministers in their publicity ads. Only pictures of the PM, the President and the Chief Justice can be used. Is it any job of the court to decide what elected governments can do with their money? One can certainly criticise governments for wasting public resources to promote political goals, but is that a matter for the courts to judge or the CAG or the electorate?

#4: The Supreme Court has been telling a private body like the Board for Control of Cricket in India (BCCI) how it should be structured, and which association should have how many votes in BCCI. Is it any job of the court to direct how private associations should be run? It can surely decide cases of corruption or mala fide action, but wholesale interference in how a sports body should be run?

#5: In some of its judgments, the court has been busy making political comments, which are none of its business. In the Salva Judum case of 2011, where the Supreme Court asked the Chhattisgarh government to disband this irregular force used to combat the Maoists, the court went on to pontificate on “predatory capitalism” and the downsides of “neoliberal” policies. Is it any job of the court to decide what policies are right for the country? Maybe it should have asked the government to roll back the liberalisation of 1991, too.

#6: At various points, the Supreme Court has been setting up investigative teams under its supervision (the UPA’s coal blocks scam), monitoring the cleaning of the Ganga, asking for reports on how rivers can be inter-linked, etc. It has gotten into areas of public policy and executive action.

#7: Taking cues from the top court, other high courts have also started encroaching on executive turf. The Bombay High Court has conflated two different issues – water used on cricket pitches and the drought in Marathwada – to decide whether IPL matches should be played in the state or outside. Is the allocation of a temporarily scarce resource something the courts should be looking into? This has to be decided by elected governments who are voted to power. That they may not be doing their job quite well is another matter, but constitutionally the courts are taking on more than they are mandated to.

The short point is that the Supreme Court and some high courts have decided to be involved in more than just interpreting the law; they are actually getting into law-making by judicial pronouncement. Any unelected body that tries to do this is effectively a self-selected ombudsman or even a dictator. Does the Supreme Court want to be seen in this light?

One reason why the Supreme Court has been able to do this blatantly is the rise in the number of Public Interest Litigations (PILs) that it has chosen to hear. This clearly takes away focus from the thousands of cases pending before it. The glamour of hearing populist PILs is obviously more than the court can resist. In early 2015, the last year for which one finds data on the Supreme Court’s web page, there were more than 61,000 cases pending. Its rates of disposal were slower than the rates of new cases coming in at that point. The apex court is clearly not doing wonders with its core cases. Is it the court’s job to get into PILs for every societal ill?

Like King Louis XIV, who effectively said “I am the State”, India’s Supreme Court has, through its actions, said “We are the law”. Governments come and go, but we are here forever.