SC has over-read the constitution to give itself almost dictatorial powers, something the constitution never envisaged.
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
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
#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
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.