Judging the judiciary
India’s Supreme Court in the age of neoliberalism.
The Supreme Court of India deals with a variety of matters ranging from the death penalty to promotion in services. Public Interest Litigation (PIL) constitutes a small proportion of the cases. But for about three decades, the judiciary didn’t recognise the inability of economically marginalised people to approach the Supreme Court and high courts for the violation of the fundamental rights to life, liberty and equality. As the principle of locus standi was strictly followed, only those whose fundamental rights were violated were entitled to approach the courts for redressal. The relaxation of this principle and permitting third party actors to approach the courts on behalf of the poor and exploited in the public interest constitute the beginnings of PIL. In The Shifting Scales of Justice, editors Mayur Suresh and Siddharth Narrain seek to examine the operation of the Supreme Court as India charted a neoliberal path, a period the authors identify as the ‘Judicial Nineties’. However, the book engages almost exclusively with PIL.
It is perhaps the right time to reflect on whether this post-Emergency phase of the Court has acquired a romanticised hue for activists and scholars.
The introduction, along with most of the contributions in the book, are premised on the generally accepted framework of the post-Emergency period – late 1970s and 1980s – as the glorious era of PIL,with the Supreme Court working towards the amelioration of the conditions of the poor, downtrodden and exploited. In contrast, the Judicial Nineties is flamboyantly described by Aditya Nigam as when “the judiciary, in particular has thrown its full weight behind the corporate-capitalism-driven agenda of spatio-temporal transformation of India.” With the publication of this book it is perhaps the right time to reflect on whether this post-Emergency phase of the Court has acquired a romanticised hue for activists and scholars, a tendency noted by Professor Upendra Baxi: “the judiciary [of the post-Emergency period] has become the prime instrumentality of re-democratising the processes of governance and practice of politics.”
This perspective of the judicial shift in neoliberal India leaves out a critical examination of the PILs prior to that era, and represents a serious lacuna in assessing and examining the judicial trends of the 1990s. The first PIL entertained by the Supreme Court was on behalf of prisoners languishing in jails as ‘undertrials’ for periods longer than the maximum term for which they could have been sentenced if convicted. In the 1979 Bihar Undertrials Case, the Supreme Court directed the release of such prisoners, noting that speedy trial was an essential element of the right to life and liberty guaranteed under Article 21 of the Constitution. An assessment of the judicial trends in PILs in the 1990s would have been enriching, considering the fact that more than three decades down the line, undertrials constitute close to two-thirds of the prisoners in Indian jails, disproportionately affecting the poor who languish for long periods with courts insisting on monetary sureties for release on bail.
It is instructive to consider the limitations of Court decisions in human-rights cases in the ‘glorious’ post-Emergency period. For example, in the lead up to the 1982 Asian Games in Delhi, large-scale construction of roads, flyovers and sports stadiums undertaken by the government saw in the abuse of labour rights of those working on the various projects. A letter was sent by the People’s Union for Democratic Rights (PUDR) to a judge of the Supreme Court, alleging violation of laws like the Minimum Wages Act during this construction. The Court treated the letter as a writ petition and held that non-payment of minimum wages amounted to ‘forced labour’, which was a violation of fundamental rights. However, the impact of the much-acclaimed judgment on the ground, in terms of the number of workers who actually benefited from it, was left unexplored by the Court. There is also the instance of the famous Bombay Pavement Dwellers case, with the Supreme Court ruling in favour of the right to shelter. Yet, throughout the body of the judgment, it holds in an operative sense that pavement dwellers could be evicted under the Bombay Municipality Act.
Command and control
Arun K Thiruvengadam pithily brings out the dangers of exhorting judges to be ‘activists’ and to bring in their own philosophies into the adjudication as a way to wield greater power in ‘public interest’. In the chapter titled ‘Swallowing a Bitter PIL?’, Thiruvengadam looks at writings by Upendra Baxi in reference to the calls made in the 1980s and 1990s asking judges to take ‘activist’ positions. He notes, Baxi is “aware that [the judge] wields enormous executive and legislative power in her role as a judge and this power and discretion have to be used militantly for the promotion of constitutional values.” Thiruvengadam then inverts the argument by observing, “So, when Justice Kirpal wrote in a judgment about encroachers being akin to pickpockets, he was merely incorporating his own value judgments into the task of adjudication – and was thus directly acting on the questionable advice offered by progressive writings in the 1980s.”
In fact, rhetoric by judges, while being agreeable to the activists, may end up detracting from progressive judgments. In a welcome decision, the private militia sponsored by Chhattisgarh state government to combat Maoist violence was held to be unconstitutional by the Supreme Court in the 2011 Salwa Judum case. The judgment struck down the formation of the militia on the anvil of violation of the right to equality and right to life. However, the judgment goes on to speak of “amoral political economy that the State endorses” and the “culture of unrestrained selfishness and greed spawned by modern neo-liberal economic ideology, and the false promises of ever increasing spirals of consumption”. Such flourishes by judges take away from the sound constitutional basis of a particular decision, and make it easier for detractors and the state to dismiss the judgment. The present turnaround in the orientation of PILs is not surprising, given the track record of the Supreme Court through the decades since its inception in 1950.
Usha Ramanathan, legal researcher and activist, critically traces the gradual expansion of the power wielded by the Supreme Court in which the legitimacy gained through post-Emergency PILs played a major role. Her chapter ‘In the Name of the People: The Expansion of Judicial Power’ finds this increasing usurpation of power starkly reflected in the injustice perpetrated in the Bhopal Gas tragedy case, under the guise of the power for the Supreme Court to do ‘complete justice’. Ramanathan illustrates the attitude of the Court from the Sheela Barse case (a PIL dealing with the children in custody), where the 1988 judgment declares that the wider responsibilities on the court “necessarily implies correspondingly higher measure of control over the parties, the subject-matter and the procedure.” In fact, by not confining herself to the Judicial Nineties and analysing earlier cases, Ramanathan adds an important dimension by examining the origins of some of the trends which emerged full-blown at a later stage.
The ‘command’ style of the Court in conducting PILs – where the judge seems to be the de facto petitioner – is often witnessed in environmental matters. The Court’s unconstitutional shutting out of persons directly affected by the issue in the name of public interest is clear in the M C Mehta case pertaining to the shifting out of heavy industry from Delhi without hearing the workers. Ramanathan indicates the ubiquitous role of the amicus curiae, decreed by some judges as having the sole prerogative of addressing the court, at times even shutting out the petitioners. However, an elaboration of the phenomenon would have been useful for readers not familiar with the proceedings in the court. Nivedita Menon, in the chapter ‘Environment and the Will to Rule: Supreme Court and Public Interest Litigation in the 1990s’, notes that “Environment trumps People, Development trumps Environment”, a catchy formulation that manages to encapsulate the attitude of the court as reflected in numerous cases of environmental/developmental conflicts. This is reflected in matters ranging from the Narmada Dam, Tehri Hydroelectric Project and Delhi Commonwealth Games Village to the numerous orders passed in the case of National Wildlife Parks and Sanctuaries in the context of the rights of indigenous dwellers of the forest.
The phenomenon of filing petitions in ‘public interest’, with no participation or input of the community primarily affected and concerned with the issue, was pioneered in the 1980s by advocate M C Mehta and appears to be going strong in courts. According to Thiruvengadam:
the contemporary PIL scene… is dominated by individual lawyers who file PILs quite often with no direct connection to the clients or causes they seek to represent. This is followed by a ‘top-down’ process employed by the judges who subsequently hear the case… with inputs from the ‘experts’ and ‘amici’ who once again, have very little direct contact with affected interests.
A case in point is the petition filed by a lawyer pleading that the children of sex workers should be taken away from their mothers. The court entertained the petition and decided to adjudicate the matter with no indication of any attempt to ascertain the wishes of the mothers or the children concerned in the matter.
The fundamental flaw of the book lies in the premise, which in a sense puts all evils at the door of neoliberal policies. Since its inception, the Supreme Court has often been favourable toward the interests of landlords, mahahrajas and private banks, and it has consistently struck down as unconstitutional the laws pertaining to land reforms, privy purse abolition and bank nationalisation in the 1950s and 1970s. Similarly, in the area of civil liberties, the Court upheld preventive detention in the case of A K Gopalan in 1950. Also, the Supreme Court’s 1976 judgment in the infamous habeas corpus case upheld the suspension of the fundamental right to life, and declared that no habeas corpus petitions could be filed for deprivation of life and liberty.
Since its inception, the Supreme Court has often been favourable toward the interests of landlords, mahahrajas and private banks.
The incisive analysis of professor Philippe Cullet regarding law related to water could well apply to a number of PILs of the ‘glorious’ era. In his contribution to this volume, Cullet writes: “The result is that the legal framework today conceptually includes progressive developments like the formal recognition of the human right to water but little has been done to translate this into actual instruments that make a difference to peoples’ lives.” Empirical research of the late 1970s and 1980s era on the concrete benefits of PIL judgments may allow for a more realistic picture of how seemingly positive decisions relate to everyday circumstances. As Sudhir Krishnaswamy and Madhav Khosla say in their chapter ‘Social Justice and the Supreme Court’, “we must have evidence to suggest that the 1990s Supreme Court chose not to enforce a right which, under similar facts and circumstances, the 1980s Supreme Court would have.”
Subscribing to the notion of the ‘1980s Supreme Court’ or ‘1990s Supreme Court’ is difficult and a monolithic visualisation of the institution is far from reality. The fate of cases, including PILs, is determined by many variables – the judges hearing the case, the litigant petitioning the court, the nature and quality of the pleadings, the lawyer arguing the case, and the stand taken by the Centre and/or state governments. Similarly, phrases like ‘under similar facts and circumstances’ are notoriously difficult to put into practice. When citing precedents in practice, judges, even in nearly identical cases, manage to ‘distinguish’ them and bring their biases and opinions into play while giving a decision.
Varun Gauri, in the chapter on ‘Fundamental rights and Public Interest Litigation in India: Overeaching or Underachieving?’ considers the data from the Supreme Court Registry to determine if the PILs in the 1990s were oriented more toward the concerns of the advantaged class compared to the 1980s. The Supreme Court instituted a classification system for PILs in 1988 which would give some idea of the nature of the case. However, the author observes that “The subject matter of PIL cases and orders remains difficult to discern because 70 percent of them are classified as ‘other’, which is problematic from the viewpoint of judicial transparency.” However, apart from the issue of transparency, the inability to develop a proper analysis of these cases represents a major gap. Furthermore, examining inequality in legal resources by looking at “the share of fundamental rights cases in which the rights violation occurred in the BIMARU states (Bihar, Madhya Pradesh, Rajasthan and Uttar Pradesh)” again seems like a flawed methodology and shaky criteria to base conclusions upon. Acronyms like BIMARU (‘sickly’ in Hindi) are catchy coinages but not necessarily based on socioeconomic indices. Orissa and West Bengal, for example, are two of the poorest states in India but do not find place in the abbreviation.
Besides the book’s analytical limitations, there are a few unfortunate errors worth pointing out. In attempting to establish the shift in trends in the Judicial Nineties, the introduction to the volume incorrectly observes, “The Supreme Court in the past two decades… has even claimed the power to declare constitutional amendments invalid.” But the Supreme Court of India has always had the power to strike down amendments under the Constitution. It then further compounds the error by informing us that it is only in the past two decades that the Supreme Court has claimed the power to declare constitutional amendments invalid. Then, however, it goes on to contradict this observation and mentions that in the first 17 years the apex court struck down half of the 45 constitutional amendments.
In terms of content, the near identical perspectives of the contributors has led to significant repetition in the book. An illustrative example is Justice B N Kirpal’s phrase in the Almira Patel judgment (2000) that “Rewarding an encroacher on public land with a free alternate site is like giving a reward to a pickpocket.” Though apt to illustrate the premises of the anti-poor shift in the 1990s, it becomes tedious when we come across it in chapter after chapter.
Overall, the essays in the volume are insightful and bring out various practices that are not so well known outside legal circles. The volume is definitely worth a look for those interested in the role of law in social change, and the study of institutions given the complex interplay of various classes, sectional interests, lobbies and ideologies in society.
~ Rakesh Shukla practices law in the Supreme Court of India.