Economic & Political Weekly EPW SEPTEMBER 5, 2015 vol l no 36 31

book reviews

Working of the Supreme Court of India

Vikram Raghavan

The Shifting Scales of Justice: The Supreme Court in Neo-liberal India edited by Mayur Suresh and Siddharth Narrain; Orient BlackSwan, Hyderabad 2014; pp xxvi + 199, Rs 650.

The Supreme Court of independent India fi rst 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 republics fi rst acts. It marked the fi nal 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 fi nal say in all cases.

The Constitution endows the Court with extensive jurisdiction and consider-able powers. The justices have not shied away from using their wide mandate. They have rendered far-reaching consti-tutional interpretations. Their judg-ments have profoundly reshaped Indias civil and criminal justice system. And in recent years, the Court has transformed itself into an immensely powerful national institution.

The Courts role and record over seven decades merit a comprehensive evalua-tion. Yet, a full and proper assessment will require years of meticulous rese-arch.1 A more manageable option is to assess the judges decisions on a specifi c subject or within a certain time frame. Mayur Suresh and Siddharth Narrain adopt that approach in their edited vol-ume 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 persist-ence. Authors must be commissioned, corralled and coaxed into submitting draft chapters. Delays and setbacks are inevitable. Publishers must be humo-ured 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, associ-ated with the Alternative Law Forum, a pioneering Bengaluru-based collective of young lawyers and activists. The books 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 Courts chronology. They high-light the Courts dismal performance in the Emergency between 1975 and 1977. The judges completely buckled under government pressure. They fl atly refu-sed 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 fi led by lawyers and human rights activists. They represented under-privileged 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 defen-dants. As Upendra Baxi put it, the judici-ary had begun to take suffering seriously.

Yet, by the 1990s, the Courts 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 rem-arkable shift in judicial behaviour.

Suresh and Narrain readily admit that the 1980s and the 1990s are not watertight decades to examine the Courts insti-tutional 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 meaning-fully appreciate the contemporary Court.

Shifting Scales opens with Upendra Baxis preface. Suresh and Narrain could not have chosen anyone better suited. Baxi is arguably Indias greatest living ju-rist. He has spent decades commenting on the Courts actions. A major theme of Baxis 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 Narrains project. He suggests that Indian judicial develop-ments can be viewed through two tem-poral fi lters: constitutional time and ad-judicatory time. Constitutional time it-self comprises two parts: (1) constituent time which refers to Indias founding as a republic, and (2) constituted time which covers every day that the Consti-tution 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 pro-vides a linear progression to understand the great cases of Indian constitutional law. Baxi ends with a tribute to the Courts demosprudence, which distinguishes it from its counterparts in other countries.

In the books fi rst 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 mat-ters. To Nigam, this turn was evident from two distinct categories of PIL cases.

Nigam mentions the Courts outrage during the early 1980s over widespread

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SEPTEMBER 5, 2015 vol l no 36 EPW Economic & Political Weekly32

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 Bombays pavement dwellers could not be summarily evicted. By the year 2000, however, the Court compa red homeless squatters to pickpockets (Almira 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 Courts 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 muchcriticised settlement in the Bhopal gas disaster litigation.

Nivedita Menon discusses the Courts record in environmental cases. She evaluates competing narratives to explain the evolution in the judges outlook. One strand argues that the Courts hyperactivity

about enforcing environmental standards in the 1990s paradoxically drove it to retreat from its earlier libera lism. 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 Courts new descant. It trum ped 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 Courts 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.

Gauris 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 Courts jurisprudence radically changed between the 1980s and 1990s. It is difficult to argue that the judiciarys views on socioeconomic rights were markedly different between the two decades. At best, they contend, the Courts performance has been uneven. It is even possibly counter cyclical.

In an essay that follows Krishnaswamy and Khoslas 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.

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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 books penultimate essay, Philippe Cullet discusses the Courts de-cisions on water law. He points out that the judiciary has repeatedly upheld a fundamental right to water. Yet, its acti-ons do not often match this lofty rhe-toric. The Court has been particularly unwilling to intervene in large water pro jects by uncritically accepting their professed development benefi ts.

Shifting Scales concludes with Ujjwal Kumar Singhs chapter. Singh focuses on the Courts directions that election candi-dates furnish information about their as-sets and criminal records. These ord ers 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 squ arely violate fun-damental 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 stat-utes like the National Security Act. Fur-thermore, it largely ignored allegations about human rights violations in Punjab during the late 1980s.

Except Krishnaswamy and Khosla, the contributors generally endorse the books 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 Reagans presidency. Savage at-tributes this movement to the appoint-ment of openly right-leaning judges like Chief Justice Rehnquist.

Change in Bench Composition

In India, too, the Courts composition dra-matically changed between the 1980s and the 1990s. Indeed, a change in the benchs line-up is entirely predictable. Unlike the US, our Constitution does not provide for lifetime judicial appointments. Every jus-tice 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 diffi cult to show that new conservative appointments drove the Indian judiciary rightward. With excep-tions like V R Krishna Iyer, judicial nom-inees are generally silent about their ideological preferences. They remain shielded from scrutiny by the opaque na-ture 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 PILs heyday in the early 1980s, there remained quite a few scep-tics among the sitting judges.

Why, then, did the Court of the 1990s modify its attitude toward PIL cases? Perhaps, as Varun Gauri alludes, the jud-ges were infl uenced by broader tre nds in the political economy. The governments gradual embrace of market-friendly pol-icies clearly percolated to the judiciary. Yet, as Aditya Nigam cautions, its sim-plistic to argue that the Court had sud-denly transformed itself a neo-liberal institution.

There were probably many factors that affected the Courts change in PIL philosophy. These factors include the collegium-based process for judicial ap-pointments; the length of an individual judges tenure on the bench; improve-ments to judicial salaries and service conditions; and the deteriorating quality of life in Delhi. At the same time, it is dif-fi cult to fully measure what role these factors played in infl uencing judges.

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

Constitutional Questions

During the 1990s, Court resolved many structural constitutional questions that did not directly involve any funda-mental rights. Who makes judicial ap-pointments was one such question. In the Third Judges Case, a rarely convened

nine-judge bench revoked the central governments authority to appoint judg-es. It entrusted this responsibility to the Courts collegium (Supreme Court Advo-cates on Record Association vs Union of India, AIR 1994 SC 268). It was only recently that the Constitution was amen ded to replace the collegium sys-tem with the National Judicial Appoint-ments Commission.

Federalism was another major subject which occupied the Court in the 1990s. Overruling earlier precedents, a nine-judge panel in Bommai sharply circum-scribed the central governments ability to impose presidents 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 resha-ped 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 Sawh-ney upheld the Mandal Commission rec-ommendations on reservations in gov-ernment jobs (Indira Sawhney vs Union of India, AIR 1993 SC 477). It quickly be-came a defi ning 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 re-versed 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

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generational assessment of the Court. An-other possibly missing element is how the Courts shifting opinions affected lower courts. As Sangeetha Ahujas (1997) ency-clopedic work rev eals, 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 signifi cant po-litical instability in India. The country was mostly ruled by minority govern-ments 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 con-tinuity amidst great uncertainty.

During the 1990s, the Court repeatedly invoked the mantra of judicial independ-ence to expand its authority and infl uence. 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 envi-ronmental, election and anti-corruption matters. Its institutional standing was fur-ther underscored by the central govern-ments 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 frag-mentation, the Court openly competed for political primacy with the exe cutive and leg-islature. 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.

I would like to thank Alok Prasanna for his insightful comments and suggestions on an earlier draft.

Vikram Raghavan (vikram1974@gmail.com) trained as a lawyer in India and he contributes to the blog, Law and Other Things. His views here are personal.

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.