Winds of change: Judicialization of mega-politics in India
SHYLASHRI SHANKAR IN THE TIMES 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
- Prejudices against judiciary (indialawyers.wordpress.com)
- Judicial Independence: Is It Threatened? (indialawyers.wordpress.com)
- Time for Zonal Benches in Supreme Court (indialawyers.wordpress.com)
- Time for change (indialawyers.wordpress.com)
- “Supreme Court verdict on CVC Thomas today” and related posts (asianetindia.com)
- Did judicial review establish the US Supreme Court (wiki.answers.com)
- At Stake, Your Honour (indialawyers.wordpress.com)