Winds of change: Judicialization of mega-politics in India

Supreme Court of India


The Supreme Court has set aside the appointment of P J Thomas as chief vigilance commissioner saying the recommendation made by the high-powered committee “does not exist in law”. The bench headed by the CJI said a CVC should be of impeccable institutional and personal integrity and criticised the committee for not considering a pending criminal case against Thomas.

The judgment comes on the heels of other interim orders demanding the government’s responses to irregularities in awarding Commonwealth Games contracts, licences in the telecom sector and reluctance to pursue those with unaccounted income in bank deposits abroad.

These rulings point to an increasing judicialization of mega-politics in India. Judicialization is the growing involvement of judges in assessing the executive’s prerogatives and performance and the reliance on courts for addressing core public policy questions and political controversies. Judicialization occurs in parliamentary democracies when a high degree of party competition in legislature invites challenges from judiciary because these systems produce weak coalitions.

In 1950s and 60s, the political elite passed the decision-making burden to the court because they wanted an umpire. Successive governments expanded the court’s jurisdiction over administrative tribunals and the court seized more powers of judicial review. In the last decade, the main driver of judicial involvement in mega politics is pressure from civil society actors.

The relationship between courts and political configurations in India‘s parliamentary system is less coherent than what these scholars assume. When the political actor is strong (single-party majority), prepared to take on courts and has a policy agenda, SC is more constrained. This occurred during Indira Gandhi‘s time. If the political actor is strong, but not prepared to strike at the court’s autonomy (Nehru’s time), or if there is a weak coalition/minority government (post-1988), the judiciary has more room to manoeuvre. Judgments appropriating the power of appointments came during a minority government and coalition rule. While the court’s decisional autonomy and power of judicial review has increased, it seems to have induced more restraint in judges. A study by the author shows judges appointed after 1993 were more likely to give state agencies flexibility and use collaborative remedies, and significantly less likely to uphold PILs.

Today, within the space given by structural (rise of weak governing coalitions) conditions, higher judiciary is trying to balance constraints imposed by institutional realities (the need to secure executive cooperation in implementing judgments) with demands for judicial action from societal actors.

Judiciary’s intervention has had positive and negative effects. On the positive side, it has knitted alliances with political parties, citizen groups, activists and the media to keep an eye on the administration. The court has used the force of law to impose deadlines, defined elements of governmental accountability and asked for explanations for non-compliance. This seems to have generated government effort to tighten administrative rules and included corruption as a key performance evaluator in ministries. The judiciary’s bid to ensure executive and legislative accountability has prompted state organs to scrutinize judicial accountability and attempt to enhance it. On the negative side, the danger remains of collusion between judiciary and other organs of state. A bigger concern is the habit developed by higher judiciary of monitoring implementation of orders. This increases case load of the judiciary, and will lead to more case backlogs.

The author is senior fellow, Centre for Policy Research

CVC case: CJI Kapadia’s court revives activism, rattles power elite


Supreme Court of India

NEW DELHI: The unseating of central vigilance commissioner PJ Thomas is the latest breakthrough made by the Supreme Court in the course of a resurgent judicial activism under the leadership of Chief Justice SH Kapadia. The ouster of Thomas, who was earlier telecom secretary, comes close on the heels of resignation of his minister A Raja, again on the Supreme Court’s prodding through a public interest litigation (PIL) related to the 2G scam.

The vigorous manner in which the SC has pursued a range of PIL cases in recent months has marked a new phase and a sharp contrast to the earlier phase when KG Balakrishnan was the chief justice. Many government leaders consider the court now a thorn in their flesh, while to the common man, the judiciary is once again seen as a source of hope — the sole institution that has the gumption to stand up to the high and mighty.

Legal experts say under Kapadia the court’s credibility has been restored after the damage it had suffered during the three-year tenure of Balakrishnan, whose kin are now under the scanner for amassing wealth disproportionate to their known sources of income. The renewed efforts to hold the influential to account have helped the institution put behind the unsavory controversies of the earlier regime — such as the reluctance to disclose the assets of judges and the abortive move to elevate a judge allegedly with disproportionate assets.

The display of such extraordinary commitment to probity in public life was, in fact, consistent with a statement made by Kapadia at the time of his appointment as CJI in May 2010. “I come from a poor family. I started my career as a Class IV employee and the only asset I possess is integrity.”

But as regards the idea of PILs, Kapadia seems to have had a rethink while in office. For, on his very first day as CJI, Kapadia, far from extolling the virtues of PIL cases, struck a note of warning by declaring that those filing frivolous PILs would be charged huge penalties. He also said the procedures for PILs would be tightened.

But as it has turned out, for PILs with merit, there hasn’t been a more sympathetic court than the one headed by Kapadia. The petition against Balakrishnan, for instance, was entertained despite Kapadia’s own acknowledgement that there were deficiencies in it. He made several administrative reforms to ensure that PILs received due attention. Among other things, he broke from the past practice of the CJI’s bench monopolising PIL cases. Kapadia shared major PIL cases with other benches, including one headed by a judge who is 11th in the order of seniority, Justice G S Singhvi. It is the bench consisting of Singhvi and Justice A K Ganguly that has been relentlessly pushing the CBI to probe all the culprits in the 2G scam, from among politicians, bureaucrats and industrialists.

Since the Radia tapes were connected with the 2G scam, Kapadia’s administration ensured that Ratan Tata‘s petition raising concerns of privacy and other such related matters were all placed before the already charged-up Singhvi bench. In much the same spirit of optimizing judicial resources, Kapadia transferred to Singhvi’s bench a long-pending petition of Amar Singh because of the phone tapping link.  It is not just the freshly-filed PIL cases that have been taken up aggressively. The Kapadia bench, for instance, revived the police reforms case which had seen little action during the Balakrishnan years. In a bid to implement the radical verdict delivered five years ago by the then CJI Y K Sabharwal, the current bench for the first time fixed a time frame for states to report compliance of the reforms aimed at reducing political abuse of the police forces.