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  • India's Supreme Court

    THE ROLE OF INDIA'S SUPREME COURT IN PUBLIC LIFE

    The Indian Supreme Court's actions cannot be understood outside of the context of Indian history, India became independent in 1947. Its government structure included a Supreme Court and the British tradition of Parliamentary supremacy. The constitutional drafters had to decide whether the constitution would contain a declaration of fundamental rights to assure proper treatment of minorities and safeguard against arbitrary rule. The final product enumerated fundamental rights and duties.(n1)

    The founders of India contemplated a Supreme Court best characterized as a technocratic body rather than an arm of the government for social policy. Since that early period, the Indian judiciary has gone through a fascinating evolution in which it has become a unique adjudicative body that considers a wide range of social issues under the rubric of protection of constitutional fundamental rights.

    Initially, Parliament could reverse any court decision with a constitutional amendment. But in the mid-1960s, a narrow Supreme Court majority narrowed that Parliamentary right. The legislature could not take away or abridge fundamental rights to life and personal liberty as articulated in Article 21 of the constitution.(n2) In 1975, in what would prove to be a watershed event in the evolution of this doctrine, Prime Minister Indira Gandhi attempted to suppress the political movement against her regime and to change the constitution to whittle down checks on the power of the executive. The Court's Solomon-like response (limiting Parliament's ability to overrule the Court but upholding Gandhi's election) remains controversial to this day.(n3)

    Eventually, the Court extended fundamental rights to include the right to a clean environment. The doctrine of Court-protected fundamental rights advanced in a way that gave the Court the last say on the basic structure of the constitution.(n4) Despite the huge power inherent in this authority, the Court has used these powers sparingly. In 25 years, it has struck down provisions of constitutional amendments in only five cases.

    The Court also liberalized the rules of standing (who can bring a case to court) and justicability (what issues a court will determine). Thus, social activist organizations or individuals can litigate on behalf of the poor and disadvantaged, and citizens can complain about bad governance or environmental degradation. The Court allows fundamental rights issues to be brought to it in unusual ways from a Western perspective. For example, a letter from an ordinary citizen can start a case. The only restriction is that the petitioner "not be a busybody or meddle-some interloper." We need some of that in the US!

    The distinguished Indian legal writer S. P. Sathe calls this a "counter-majoritarian" check on democracy in support of unpopular causes and politically powerless minorities. Social action groups use this type of litigation strategically when political mobilization or direct agitation alone does not yield results.(n5)

    In many nations, the highest court is principally an appellate body that reviews, affirms, or reverses the decisions of lower courts. When fundamental rights are involved, however, the Indian Supreme Court sits as a court of initial jurisdiction, essentially a trial court. In this capacity, as in the Delhi pollution issues, the Supreme Court receives factual affidavits from the parties and is deeply involved in the details of the matter before it.

    In practical terms, the Supreme Court's "one-stop shopping" can reduce the time in which significant issues are adjudicated, On average, litigation in Indian lower courts--not including time for appeals--takes 15 years to come to closure.(n6) The Supreme Court and other high courts take relatively less time, although a petition like M.C. Mehta's, which asked for wide-ranging relief, can take a long time to resolve.

    How did a court come to decide matters of social policy? Sathe posits that the Court increasingly came to be seen by the public as the defender of ordinary citizens against the abuse of powers by ministers and administrative officials. This perception of independence is assisted by a relatively disinterested appointment and tenure process.(n7) But Sathe also admits that many of the Court's decisions are essentially political, that "the Court performs the political function of legitimizing or censuring the acts of the other organs of governments."(n8)

    (n1.) The discussion in this section relies heavily on S. P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits (Oxford, UK; Oxford University Press. Second Edition, 2002).

    (n2.) Fundamental rights are contained in Part III of the Indian Constitution. Unlike for example, the U.S. Constitution, India's Constitution is detailed and specific, which is why amendments are necessary. About 81 amendments have been passed in the past 50 years. See Sathe, note 1 above, page 64. In comparison, the U.S. Constitution is much more general and very difficult to amend (27 amendments in more than 200 years).

    (n3.) See Sathe, note 1 above, pages 8-9 and 73-76. In 1975, the election of Indira Gandhi to the Indian Parliament was set aside by a state high court on grounds that she had "taken recourse to a corrupt practice" under the election law. She appealed to the Supreme Court, which upheld the decision allowing her to continue as prime minister without voting rights. On 25 June 1975, Gandhi declared an emergency under article 352 of the Constitution and caused a constitutional amendment to be passed to present scrutiny of her election by the Court. The clause substituted a new law that made Gandhi free from liability with retrospective effect and also provided that her election would continue to be valid even if the Court made a contrary decision. In the subsequent litigation, the Court upheld the election but struck down the amendment.

    (n4.) See Sathe, note 1 above, page 18. Indeed, the Court itself has characterized its role in this way. In Basheshar Nath v Commissioner, Income Tax, Justice Subba Rao "... held that persons could not even voluntarily waive their fundamental rights. ['it is the duty of this court to protect [the] rights [of the economically poor, educationally backward and politically not conscious] against themselves.']"

    (n5.) See Sathe, note 1 above, page 18.

    (n6.) See S. Divan and A. Roseneranz, Environmental Law and Policy in India: Cases, Materials and Statutes (Oxford, UK: Oxford University Press, 2nd Edition, 2002), footnote 49 at 123. ("For example, in the Bombay High Court the delay in a writ petition is 6 years compared to over 15 years for a suit.")

    (n7.) Judges come from various regions and communities. Religion and gender are considered along with professional expertise. Once appointed, a justice cannot be removed except for proven misbehavior or incapacity and unless charges against him are found valid by a committee of judges and jurists. Removal requires a resolution passed in each house of parliament by a majority of the total membership of that house, and by a majority of not less than two-thirds of members present and voting.

    (n8.) The "legitimacy of the Court depends upon [the public belief] that its decisions are principled, objective and just," Sathe, note 1 above, page 22.

  • #2
    Sigh , if only we could bring those kind of standards to each and every court house inside India.

    Judicial Reforms are urgently needed.

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    • #3
      Good to find there is some interest in India.


      "Some have learnt many Tricks of sly Evasion, Instead of Truth they use Equivocation, And eke it out with mental Reservation, Which is to good Men an Abomination."

      I don't have to attend every argument I'm invited to.

      HAKUNA MATATA

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