Working of the Supreme Court of India

The Supreme Court of independent India first opened its doors on a Saturday. Its inaugural sitting took place on 28 January 1950 at what is now Parliament House. Convening the Court was among the republic’s first acts. It marked the final milestone in the transfer of power from Britain to India. Appeals would no longer go to the Privy Council in London. The Court in Delhi would have the final say in all cases.

The Constitution endows the Court with extensive jurisdiction and considerable powers. The justices have not shied away from using their wide mandate. They have rendered far-reaching constitutional interpretations. Their judgments have profoundly reshaped India’s civil and criminal justice system. And in recent years, the Court has transformed itself into an immensely powerful national institution.

The Court’s role and record over seven decades merit a comprehensive evaluation. Yet, a full and proper assessment will require years of meticulous research.¹ A more manageable option is to assess the judges’ decisions on a specific subject or within a certain time frame. Mayur Suresh and Siddharth Narrain adopt that approach in their edited volume on the Court in the 1990s.

Challenges of an Edited Volume

Assembling and editing a collection of essays is no easy job. The task requires much patience, persuasion and persistence. Authors must be commissioned, corralled and coaxed into submitting draft chapters. Delays and setbacks are inevitable. Publishers must be humoured as a manuscript slowly takes shape. The process is often long and frustrating. Many editors simply give up. Happily for us Suresh and Narrain stayed the course. They offer us an attractive book with a tastefully designed, yellow and dark-grey dust jacket.

The editors are, or have been, associated with the Alternative Law Forum, a pioneering Bengaluru-based collective of young lawyers and activists. The book’s contributors are mostly legal or political science academics with one economist thrown in for good measure.

Broad Phases

In their thoughtful introduction, Suresh and Narrain describe the broad phases of the Court’s chronology. They highlight the Court’s dismal performance in the Emergency between 1975 and 1977. The judges completely buckled under government pressure. They flatly refused to protect citizens’ rights and civil liberties. After the Emergency ended, the Court desperately searched for ways to redeem its reputation.

It found an opening in unorthodox writ petitions filed by lawyers and human rights activists. They represented underprivileged and marginalised persons whose rights were being violated. A band of judges enthusiastically responded to this wave of public interest litigation (PIL). Among other things, they ordered drastic improvements to mental asylums, condemned torture in prisons, and strengthened the rights of criminal defendants. As Upendra Baxi put it, the judiciary had begun to take suffering seriously.

Yet, by the 1990s, the Court’s attitude towards PIL cases changed. Judges grew increasingly hostile to disputes involving the poor or dispossessed. They seemed to lack the compassion displayed by their predecessors in the 1980s. Shifting Scales describes and analyses this remarkable shift in judicial behaviour.

Suresh and Narrain readily admit that the 1980s and the 1990s are not watertight decades to examine the Court’s institutional trajectory. They regard the 1990s as a “conceptual period” that reveals the judiciary in transition. It is through this prism, they argue, that one can meaningfully appreciate the contemporary Court.

Shifting Scales opens with Upendra Baxi’s preface. Suresh and Narrain could not have chosen anyone better suited. Baxi is arguably India’s greatest living jurist. He has spent decades commenting on the Court’s actions. A major theme of Baxi’s wide-ranging scholarship is “social action litigation,” as he prefers to call PIL. As a legal academic, Baxi not only had a ringside view of the action, he himself was a petitioner in some cases.

Analytical Framework

Baxi provides an analytical framework to anchor Suresh and Narrain’s project. He suggests that Indian judicial developments can be viewed through two temporal filters: constitutional time and adjudicatory time. Constitutional time itself comprises two parts: (1) constituent time which refers to India’s founding as a republic, and (2) constituted time which covers every day that the Constitution is put to practice.

Adjudicatory time, Baxi believes, is the period when the executive or the legislature receive or react to a Court decision. It provides a linear progression to understand the great cases of Indian constitutional law. Baxi ends with a tribute to the Court’s “demosprudence,” which distinguishes it from its counterparts in other countries.

In the book’s first essay, Aditya Nigam recalls how readily the post-Emergency Court embraced PIL cases. Yet, by the 1990s, it seemed as though the judiciary had done enough penance. It adopted a distinctly hostile attitude in several matters. To Nigam, this turn was evident from two distinct categories of PIL cases.

Nigam mentions the Court’s outrage during the early 1980s over widespread abuses of contract labour. It repeatedly championed the rights of disenfranchised workers. Yet, the Court reversed itself a decade later. It declared that contract labourers have no right to demand regular employment. Nigam also discusses Olga Tellis from the the mid 1980s (Olga Tellis vs Bombay Municipal Corporation, AIR 1986 SC 180). In that case, the Court ruled that Bombay’s pavement dwellers could not be summarily evicted. By the year 2000, however, the Court compared homeless squatters to pickpockets (Almitra Patel vs Union of India, AIR 2000 SC 1256).

Usha Ramanathan attributes these shifting judicial attitudes to economic and structural reforms. She is especially critical of the Court’s reckless reliance on its constitutional power to do “complete justice.” In case after case, the Court invoked that power to render extraordinary rulings including its much-criticised settlement in the Bhopal gas disaster litigation.

Nivedita Menon discusses the Court’s record in environmental cases. She evaluates competing narratives to explain the evolution in the judges’ outlook. One strand argues that the Court’s hyperactivity about enforcing environmental standards in the 1990s paradoxically drove it to retreat from its earlier liberalism. The other strand suggests that the judges in the 1990s were, in fact, much too restrained. Although they continued to handle PIL cases, their decisions largely benefited middle classes rather more than the poor. Development became the Court’s new descant. It trumped the environment and people in a warped hierarchy of needs.

On PILs

Varun Gauri opens his essay by challenging the widespread belief that Indian judges exceed their constitutional mandate in PIL cases. Our time is better spent, Gauri argues, examining how the Court’s orders actually have an impact on sectoral governance in each case. An economist, Gauri uses statistical techniques to identify PIL winners and losers. He finds that advantaged groups, whom he loosely defines as professionals and government servants, have a much higher “win rate” than marginalised groups such as Other Backward Classes, Scheduled Castes and Scheduled Tribes.

Gauri’s emphasis on empirical rigour resonates with the authors who follow him. In a provocative piece, Sudhir Krishnaswamy and Madhav Khosla argue that it is neither doctrinally nor empirically possible to establish that the Court’s jurisprudence radically changed between the 1980s and 1990s. It is difficult to argue that the judiciary’s views on socio-economic rights were markedly different between the two decades. At best, they contend, the Court’s performance has been uneven. It is even possibly counter cyclical.

In an essay that follows Krishnaswamy and Khosla’s piece, Arun Thiruvengadam challenges their assertions. He argues that although Court continued to handle PIL cases during the 1990s, its judgments were substantially different from the previous decade. Thiruvengadam worries that this trend may cause progressives to simply give up on the Court. The judiciary, he insists, remains a valuable institution to enforce constitutional rights and demand accountability. Lawyers and activists must engage judges through constructive debate. They must persuade the bench to adopt a modest facilitative role in cases with major public policy implications rather than a command-and-control strategy.

In the book’s penultimate essay, Philippe Cullet discusses the Court’s decisions on water law. He points out that the judiciary has repeatedly upheld a fundamental right to water. Yet, its actions do not often match this lofty rhetoric. The Court has been particularly unwilling to intervene in large water projects by uncritically accepting their professed development benefits.

Shifting Scales concludes with Ujjwal Kumar Singh’s chapter. Singh focuses on the Court’s directions that election candidates furnish information about their assets and criminal records. These orders rightly won plaudits for the Court. But they obscure bad decisions in terrorism and national security. Singh mentions several cases in which the Court upheld draconian laws that squarely violate fundamental rights and liberties. I would add that this trend predates the 1990s. Even as the Court issued its early PIL decisions, it readily upheld preventive detention statutes like the National Security Act. Furthermore, it largely ignored allegations about human rights violations in Punjab during the late 1980s.

Except Krishnaswamy and Khosla, the contributors generally endorse the book’s working hypothesis: the Indian judiciary grew less progressive during the 1990s. Similar claims were made about the United States Supreme Court in the late 1980s. In Turning Right, David Savage (1993) described how that institution turned distinctly conservative during Ronald Reagan’s presidency. Savage attributes this movement to the appointment of openly right-leaning judges like Chief Justice Rehnquist.

Change in Bench Composition

In India, too, the Court’s composition dramatically changed between the 1980s and the 1990s. Indeed, a change in the bench’s line-up is entirely predictable. Unlike the US, our Constitution does not provide for lifetime judicial appointments. Every justice must retire at 65. Thus, any justice who had served on the Court in 1984 had gone into full retirement by 1990.

Even so, it is difficult to show that new conservative appointments drove the Indian judiciary rightward. With exceptions like V R Krishna Iyer, judicial nominees are generally silent about their ideological preferences. They remain shielded from scrutiny by the opaque nature of the appointment process. And once on the bench, they largely defy easy labelling as conservatives, strict constructionists, or liberals. Moreover, we must not overlook the fact that even during the PIL’s heyday in the early 1980s, there remained quite a few sceptics among the sitting judges.

Why, then, did the Court of the 1990s modify its attitude toward PIL cases? Perhaps, as Varun Gauri alludes, the judges were influenced by broader trends in the political economy. The government’s gradual embrace of market-friendly policies clearly percolated to the judiciary. Yet, as Aditya Nigam cautions, it’s simplistic to argue that the Court had suddenly transformed itself a neo-liberal institution.

There were probably many factors that affected the Court’s change in PIL philosophy. These factors include the collegium-based process for judicial appointments; the length of an individual judge’s tenure on the bench; improvements to judicial salaries and service conditions; and the deteriorating quality of life in Delhi. At the same time, it is difficult to fully measure what role these factors played in influencing judges.

As a retrospective on the Court, the book relies a bit too heavily on core PIL cases. These cases are invariably filed as writ petitions that seek the enforcement of this or that fundamental right. This rights-based litigation has become the lifeblood that renews India’s constitutional system. Yet, the Court’s holdings in other constitutional and legal disputes also matter when evaluating its overall record.

Constitutional Questions

During the 1990s, Court resolved many “structural” constitutional questions that did not directly involve any fundamental rights. Who makes judicial appointments was one such question. In the Third Judges Case, a rarely convened nine-judge bench revoked the central government’s authority to appoint judges. It entrusted this responsibility to the Court’s collegium (Supreme Court Advocates on Record Association vs Union of India, AIR 1994 SC 268). It was only recently that the Constitution was amended to replace the collegium system with the National Judicial Appointments Commission.

Federalism was another major subject which occupied the Court in the 1990s. Overruling earlier precedents, a nine-judge panel in Bommai sharply circumscribed the central government’s ability to impose president’s rule in states under Article 356 (S R Bommai vs Union of India, AIR 1994 SC 1918). Bommai and other decisions like In Re Cauvery reshaped constitutional and political relations between the centre and the states (In Re Cauvery Water Disputes Tribunal, AIR 1992 SC 522). They are just as important as the PIL cases in evaluating the Court.

Playing Down Landmarks

Even with respect to fundamental rights, Shifting Scales curiously downplays some landmark decisions. In November 1992, a nine-judge bench in Indira Sawhney upheld the Mandal Commission recommendations on reservations in government jobs (Indira Sawhney vs Union of India, AIR 1993 SC 477). It quickly became a defining precedent on the right to equality. Three months later, the Court announced in Unnikrishnan that the Constitution recognises a fundamental right to education (J P Unnikrishnan vs State of Andhra Pradesh, AIR 1993 SC 2178). Unnikrishnan was partially reversed by another decision. But it kicked off a national movement that culminated in the enactment of a constitutional amendment to recognise the right.

Strictly speaking, Indira Sawhney and Unnikrishnan may not have been core PIL cases. But they cannot be ignored in any generational assessment of the Court. Another possibly missing element is how the Court’s shifting opinions affected lower courts. As Sangeetha Ahuja’s (1997) encyclopedic work reveals, many high courts were deeply involved in PIL cases. How, then, did high court judges across the country react to the changing attitudes on the apex bench in Delhi?

Impact of Politics

Finally, any institutional assessment of the Court must pay due regard to politics. The 1990s were marked by significant political instability in India. The country was mostly ruled by minority governments and political coalitions. This state of affairs had far-reaching implications for the judiciary. As faith in the political classes plummeted, black-robbed judges represented constitutional order and continuity amidst great uncertainty.

During the 1990s, the Court repeatedly invoked the mantra of “judicial independence” to expand its authority and influence. It elevated that principle to a basic feature of the Constitution. This put it beyond the reach of constitutional amendments. Citing judicial independence, an emboldened Court issued wide-ranging orders in environmental, election and anti-corruption matters. Its institutional standing was further underscored by the central government’s invitation to arbitrate a partisan question like Ayodhya. That question should have been resolved politically, but the Court only partially resisted the temptation.

Taking advantage of parliamentary fragmentation, the Court openly competed for political primacy with the executive and legislature. The Court was aided in this power play by an adoring media and middle-class base whose loyalty it shrewdly cultivated. It is these astonishing developments through which Shifting Scales invites us to better understand our Court of today.

Note

1 There have been a few notable attempts. See, Dhavan (1977) and Austin (2000).

References

Ahuja, Sangeetha(1997): People, Law and Justice, Orient Longman.

Austin, Granville (2000): Working a Democratic Constitution: A History of the Indian Experience, Oxford.

Dhavan, Rajeev (1977): The Supreme Court of India: A Socio-Legal Critique of Its Juristic Techniques, N M Tripathi.

Savage, David G (1993): Turning Right: The Making of the Rehnquist Supreme Court, Wiley.