ANGST Under Black Robes


For all their immense powers, the men who man the Indian judiciary are an unhappy lot, partly because of political interference, partly because of burdening itself with silly things, and now a head-on has come about

Rajeev Dhavan

Rajeev Dhavan

Rajeev Dhavan is a Senior Advocate, a human rights activist, and a Commissioner of the International Commission of Jurists. He is the author or co-author of numerous books on legal and human rights topics, and is a regular columnist in the leading newspapers in India

Created by the British, India’s judiciary is over two centuries old, with several High Courts being born in 1861, the antecedents going back to an earlier time. Why did Indians flock to British Indian Courts for just about everything – as, indeed, they still do – and create a huge backlog till High Court level? This backlog is not new. The George Rankin Committee reported massive arrears way back in 1924. Today the position is worse: the present backlog in lower courts in India is 2 to 3 crores. The situation is endemic. It arises because if in any one year institution of cases is greater than disposal in that year, the cumulative effect is that each year’s arrears are added to the next. The problem of arrears will never be resolved. So why do Indian people file in India’s Courts when they know justice may transcend into old age and death? The funny thing is that disputes were not just about land. The nineteenth century analysis of civil and criminal disputes is fascinating. British Indian Courts were adopted by Indians despite the frustration of corrupt lawyers, the process and indeterminacy. There are traditional and quasi-legal avenues of settlement like lok adalat. But there is a culture not of conciliation but anger with determination – as litigants threaten to go “right up to the Supreme Court”. India’s litigation habits will continue. The kala coat persists as the faith in judicial decisions remains.

Political Edge

The Constitution of India made a sea-change in the empowerment of the Indian High Courts and Supreme Court, which unlike their predecessors, had the power to challenge government decisions and legislation. In other words, the equation was soon projected as Courts versus government. This was a dramatic turn in Indian governance. My own research shows that in the fifties and sixties government legislation was struck down in few cases. But the few cases made controversy and history. Right from 1950, the zamindar cases, for acquisitions and a few censorship cases portrayed a new turn of events. Nehru wanted the ancient regime of princes, zamindars and rural landlords to be abolished with niggardly compensation. The High Court and Supreme Court wanted a proper compensation to be paid. The British paid market value under the Land Acquisition statutes for acquisitions. Why shouldn’t Indian courts?

The challenge was: was the court with Parliament or the zamindars. This was the political moment in India’s judicial history. The Supreme Court believed they were just followers of the “rule of law”. Politicians never believed this, portraying these erring judges as anti-development, rooted in un-Indian jurisprudence. So for the entire period, 1950-1977, the courts did massive work in all departments (civil, criminal revenue or constitutional) but the reputation ascribed to them was their political reputation as anti- catalysts. Two great controversies seized this period. The first, zamindari, land and the compensation cases. The second was the “Amendment” controversies. The courts got fed up with their judgements being over-ruled and constrained Parliament’s power to amend the Constitution. During the Emergency (1975-77), Mrs. Gandhi’s primary target (apart from reversing the Election case against her) was to rein in the judiciary. In the Rajya Sabha she declared that some, not all, judges were bad like Koka Subba Rao. No doubt some lawyers who masterminded these cases, such as Palkhivala, were bad even though she prevailed on him to appear for her in her Election case in pre-Emergency 1975. She wanted “committed judges” to support her and the regime. During the Emergency, the judiciary buckled. Some judges even played to Mrs. Gandhi’s ego during and after the Emergency, and on her return to power in 1980.

New Judicial Weapon

The eminence of the Supreme Court in the eyes of the public would have died due to its atrocious failures in the Emergency, but for the gang of four (Krishna Iyer, Bhagwati, Chinnappa Reddy and Desai) – perhaps with Chandrachud thrown in for good measure, who relied on the banner of social justice to open up the Court to letter petitions and causes galore. The epistolary petition to locate any public grievances became unmanageable and died.

During the 1980s, and to some extent in the 1990s, the Court was dramatic. They decreed on bonded labour, cheap labour and atrocities. But the symbolic effect of all this was immense. India is a country of unabated atrocity. The Bihar Blindings case (1980) exposed much that was rotten.

The next target was environment which affected “business” more directly. This has continued till today. In 2018 the forest case of 1996 (T.N. Godavarman) continues even now. The two areas that affected industry were especially forests and mining. Even Cabinet Ministers were pulled up for disturbing the environment. But the political nexus of the mining, timber and industrial lobby was amazingly strong. In time, the Court partly backed off; yet it continued with the force of its own compulsions. A right wing court replaced its left wing. Still the Supreme Court felt it could do anything, carrying the general public with them to become the seat of opposition to government.

The next concurrent phase of the Court was targeting corruption such as in the 2G and other cases. Corruption is everywhere and nobody really cares about low level corruption without political mileage. From Bofors (1987) to now, big corruption has unseated governments. The Courts play a careful hand. But they have acquired sufficient support from the public. I was returning from a case in Mumbai in 2009 and showed my Supreme Court Identity card at the airport. The police officer examining it said “For the Supreme Court we can even stop a plane”. Little do they know of the Court’s inner weaknesses!

The Court does many silly things outside its domain: cleaning the Ganga, connecting all the river basins, and in one instance the ebullient Justice Katju, on his own, ordered that sea-water be processed into potable drinking water. It ventured too far to rewrite police laws and is close to capturing governance. The liquor judgments of 2017 bear witness to the Supreme Court’s arbitrarily self-promoting views on drinking and highways - contrary to all State laws without examining them. A virulent opponent of the judiciary Somnath Chatterji, then Speaker of the Lok-Sabha, used to give dinner parties to people (I attended one) to reduce the intimations of power of Supreme Court and High Court judges.

But what cemented the Supreme Court’s power was the huge support it got from a new breed of social-politico lawyers and groups (some funded from abroad) who dominated the court’s direction. They became the new brokers of power. Enough research has not been done on how these public interest gladiators found their place. The Court itself grieved that some of this litigation is “paisa interest litigation” and “publicity interest litigation”.

Present Discontents

India’s higher judiciary, and especially the Supreme Court, have become amazingly powerful both in their social standing as well as the width of their jurisdiction. The Indian Supreme Court is the most powerful in the world. It decides virtually everything. It survives criticism against its iconic presence. One primary discontent is that it is flooded with arrears of cases. Its methods of dealing with this are primitive: Taking rent or land acquisition cases, or service cases and dealing with them in the manner of quick disposal justice. But try as it might, it has not managed this flood except by sloppy justice. Yet the flood continues.

I do not think that it will ever be resolved. The arrears of all cases in the Supreme Court in 1950 was 690 out of 1037; in 2016, 79,244 filings; 36105 disposals and cumulative arrears of 62,537. Of course, we divide this into admission and regular cases. But the admissions take 30-40% of the Supreme Court’s time.

The biggest segment is that of the Special Leave Petition (SLP). The only way is to either abolish the SLP jurisdiction, or deal with them by circulation without court hearings. When I suggest this, lawyers howl with protest because the SLP is primary source of money fattened lakhpatis and crorepatis. Supreme Court judges are not too happy because they have a declining faith in High Courts (where most come from) and feel they must examine all cases as if they are the sole proprietors of justice. But the Supreme Court, high courts less so, refuses to examine any structural proposals for reform. Second, the Supreme Court’s funding depends on negotiations with government. Earlier, I had worked on the budgets of the Allahabad High Court and Supreme Court to come to the conclusion that our courts are the “least expensive branch”. Alan Gledhill in 1964 had called it the most successful nationalised industry. That may well be so if we add stamp fee to courts’ fee. The chief justices are happy to look at its administration. In many countries, court administration is left to professionals.

Undisciplined Judges

The third discontent is that the High Courts and the Supreme Court have no effective way to discipline judges who misbehave or are corrupt. The constitutional criteria for impeachment are “proven incapacity or misbehaviour”. But that is to get rid of the judge by a parliamentary process which has never succeeded, but in some cases caused high court judges to resign. There is no procedure to discipline judges short of removal. The in-house procedures of high courts over district judges is arbitrary; over themselves non-existent. The next discontent is over appointments. One aspect is elevating high court judges who retire at 62 years to Supreme Court judges who retire at 65 years. But the real tussle for power is over judicial appointments. Before 1982, this was done jointly by the Executive and Supreme Court. In 1982, 1993, 1994 and 2016 the Supreme Court wrested this power to themselves. The attempt to appoint a National Judicial Commission was mired with political edge. The present system is faulty and needs a proper National Judicial Commission. At present the standards of judicial appointment are weak and not immune from influence and corruption. There is a savage fight between government and the Supreme Court over who should be appointed. In this exercise, caste, power and influence has been far from absent. Will majoritarian Hindutva create a Hindutva judiciary?

We cannot think of courts without lawyers. Some of them are very good. But there are too many lawyers chasing the El Dorado of money. Lawyers are rarely pulled up. At lower levels and high courts, they are the most unruly in the world, despite excellence higher up.

Judiciary’s Politics

I have given a potted review of the Supreme Court showing that it has always been a political institution – although its politics is not democratic politics but institutional politics for wise judges (many unwise) to temper government. Such a polarity makes for healthy constitutionalism by pinning down and juxtaposing democratic (often majoritarian) politics against the rule of law (including social justice, on which the Court is getting weaker). But the fear is that parliamentary and political party politics intimidates judicial independence.

My fear is that the evolving “Hinduized” politics to destroy the secular democratic framework is yet another battle that scourges. Courts and lawyers are class-driven for the well-off despite public interest possibilities at the top. Just as in many other constitutional and other institutions of governance in post-colonial governance, the Indian judiciary dwarfs other judiciaries nearby. But a rule-of-law-based social judiciary is needed for good governance for all. There is a struggle ahead to achieve this.


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ANGST Under Black Robes

Created by the British, India’s judiciary is over two centuries old, with several High Courts being born in 1861, the antecedents going back to an e...