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A people’s court must be open to public accountability

A judiciary that sees a role for itself in governance should also be accountable to the governed

The Supreme Court’s recent contempt judgement against Prashant Bhushan has again raised the question of what is considered legitimate criticism of India’s higher judiciary. But first, we must define the identity of the higher judiciary, and its new relationship with the public. The Supreme Court has evolved the judicial appointment system and enlarged its public interest litigation (PIL) jurisprudence well beyond its original constitutional mandate, effectively converting itself into a people’s court. This new identity requires new rules of accountability, criticism and feedback, to ensure checks and balances.

At the birth of the republic in 1950, the role of the Supreme Court mainly focused on disputes between state and Union governments and defining the relationship between the citizen and the state, achieved mainly by setting clear boundaries to define what a democratically elected government can and cannot do. From 1950 until the Emergency, the Supreme Court largely stuck to this mandate, though it was attacked as an elitist institution not in touch with preferences of the public.

But after Indira Gandhi’s authoritarian rule during the Emergency and the related irregularities in judicial appointments, the Supreme Court went through a fundamental transformation on two accounts—judicial populism and judicial appointments.

In an effort to fend off the elitism attack, Indian courts embraced activism, mostly demanded by citizens, by expanding PIL jurisprudence. Legal scholar Anuj Bhuwania has chronicled long-running and procedurally-fluid PILs on slum demolitions and industrial as well as vehicular pollution, where the Supreme Court played a governance role by issuing mandamus writs to executive authorities. These cases didn’t follow the standard format of petitioner versus a defendant, because the function was not dispute resolution. Nor did these cases have judgements. Instead, the court issued a series of orders to the relevant executive authority and then monitored compliance. The court has set aside two days a week just to admit and hear such cases.

A writ petition filed by M.C. Mehta (No. 13029) in 1985 seeking directions for regulation of air pollution in Delhi is still pending. In its 1991 order, the Supreme Court said, “This writ petition shall be deemed to be pending for the purpose of monitoring." Most recently, listed on 11 August 2020, the court took up the Smog Towers Report No. 106 submitted by the Environmental Pollution Prevention and Control Authority, a body set up under its directions in 1998. That this case has gone on for 35 years is not due to a judicial delay, but because of constant judicial monitoring and supervision of executive action. According to the judiciary, democratically elected governments have shirked their responsibilities, and PIL jurisprudence attempts to solve this governance problem.

To resolve disputes between governments and define the relationship between the citizen and state, the judiciary must be independent. It requires the executive to follow the rules and procedures on appointments and transfers laid down in the Constitution. But, due to interference during the Emergency, the Supreme Court evolved new rules for the appointment of judges, different from those originally under the Constitution, to eliminate executive interference.

In 1993, in The Second Judges case, the Supreme Court established a new method of appointing judges, under which candidate recommendations made by a collegium comprising the Chief Justice of India and the senior-most judges of the apex court became binding. In 1998, in the Third Judges case, the Supreme Court clarified that this collegium shall comprise the Chief Justice of India and his four senior-most colleagues for Supreme Court appointments and his two senior-most colleagues for high court appointments.

These cases governed the system of judicial appointments until 2014, when Parliament passed the Constitution (Ninety-Ninth) Amendment Act, 2014, accompanied by the National Judicial Appointments Commission Act, 2014 (NJAC Act) to end the trend of a self-appointing judiciary and ensure that appointments were made by the executive and judiciary together. In October 2015, the top court held both the constitutional amendment and the NJAC statute unconstitutional. In response, the government issued memoranda regarding the appointment of Supreme Court and high court judges, to clarify the procedure. While the judiciary continues to enjoy primacy, now the executive must again be included in the consultations. But the actual selection process is still not known to the public.

With the evolution of PILs, appointment procedures and jurisprudence over the years, India’ constitutional architecture finds itself on shaky ground. For better or worse, the judiciary seems to have fashioned itself as a governance institution, though it is neither democratically elected nor appointed by a government that is. Nor can details of the appointments of those who govern us be reviewed for accountability.

Such an institution demands a new set of checks and balances. A people’s court will naturally receive feedback, if not criticism, from the very people it claims to govern. If the Indian judiciary wishes to remain a public governance institution, it must embrace some rules of public accountability that it has long enforced on other institutions of governance in the country.

Shruti Rajagopalan is a senior research fellow with the Mercatus Center at George Mason University, US

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