The South Asia Channel

Modi’s Marbury Moment

The Indian Supreme Court and the Modi government are engaged in a battle for constitutional supremacy.

A security personel walks in front of the Indian Supreme court in New Delhi on August 27, 2014.  India's top court said lawmakers with criminal backgrounds should not serve in government, with 13 ministers facing charges for attempted murder, rioting and other offences. The ruling is likely to put pressure on right-wing Prime Minister Narendra Modi, who swept to power this year pledging clean governance.    AFP PHOTO/ SAJJAD HUSSAIN        (Photo credit should read SAJJAD HUSSAIN/AFP/Getty Images)
A security personel walks in front of the Indian Supreme court in New Delhi on August 27, 2014. India's top court said lawmakers with criminal backgrounds should not serve in government, with 13 ministers facing charges for attempted murder, rioting and other offences. The ruling is likely to put pressure on right-wing Prime Minister Narendra Modi, who swept to power this year pledging clean governance. AFP PHOTO/ SAJJAD HUSSAIN (Photo credit should read SAJJAD HUSSAIN/AFP/Getty Images)

Indian Prime Minister Narendra Modi’s ascent to the political center stage in India last year has been accompanied by much hope and adulation. As the head of India’s first clear-majority government in almost three decades, and charged with the categorical mandate of reviving a flagging economy, most attention has justifiably remained focused on Modi’s economic and foreign policy maneuvers. Yet, clear signs are now emerging that in its first year in power, his government’s defining move is likely to be an attempt to reclaim India’s elected branches, establishing a position of constitutional supremacy in the country’s institutional pecking order. Late last year, the government amended the Constitution to deprive the Supreme Court of its unique power of self-appointment and sought to create a National Judicial Appointments Commission (NJAC) to make appointments to India’s superior courts. The move appears well-intentioned, designed to democratize judicial appointments. But the constitutional amendment and its accompanying statute (together, “NJAC law”) are badly drafted. While they assure the government constitutional primacy, they also risk undermining the Court’s decisional independence. Much hinges, therefore, on the litigation presently underway to challenge both. Given the genuine concerns with the NJAC law, the Court’s activist reputation, and the many doubts the bench hearing the petition has voiced in the course of the hearing, it seems likely that the law may be at least partially invalidated. If this were to happen, the government has communicated its intention to undo the Court’s decision by legislative re-enactment or amendment. The stage in India then seems set for a Marbury-esque drama with lasting constitutional implications for the country.

The NJAC law has a colorful historical context. Originally, the government held the power to make appointments. The Chief Justice of India had to be consulted but was rarely an equal participant in the process. The system worked well until the late 1960s, when Prime Minister Indira Gandhi embarked on a nationalist agenda. An activist Supreme Court frequently invalidated her more controversial policies. In response, her government sought to pack the court with judges “committed” to its philosophy. So badly did this compromise the court’s independence that when Gandhi subsequently declared a state of emergency on specious grounds, the Supreme Court did nothing to stop her.  Instead, it legitimated the de facto dictatorship. That was the Supreme Court’s darkest hour. When the Emergency ended two years later and Gandhi lost political power, a repentant Supreme Court set out to reclaim its legitimacy. Over the next decade, the Court adopted an anti-establishment, pro-citizen stance, championing human rights and fronting efforts to increase political accountability. By the end of the 1980s it emerged as the country’s most trusted institution. Yet successive governments continued to notch up clear-majorities in Parliament and balanced the court’s growing clout. Since the 1990s, however, India has never had a clear-majority government. Weak coalitions have ruled the country. Their mandates have been suspect, their vision hostage to partisan politicking. Unable to come good on crucial political and socio-economic reforms, citizens frequently turned to the Supreme Court to plug the governance vacuum left behind by the unresponsive elected branches. Little by little, political power ceded decisively to judicial authority these past two decades.

It was during this phase that the Supreme Court, through its decisions (in what are known as the Second and Third Judges Cases) overturned the constitutional text and itself assumed the appointment power. Arguing that as the court’s principal litigant, the government had every reason to misuse the appointment power as it had done before, the court created a Collegium comprising of the top five Supreme Court judges who would nominate appointees to India’s superior courts. The government was to be bound to appoint the Collegium’s nominees.

Critics argue that the self-appointment power is problematic. It stratifies the judiciary and dilutes executive oversight. A neutral appointments commission (such as the NJAC) comprising judges, politicians, and eminent citizens, they reason, is a reasonable alternative. Yet, the NJAC law comes with some serious problems in its present form.

First, the NJAC law allows the NJAC to consider additional criteria other than ability and merit when making appointments. Such criteria could well imply diversity, absence of criminal records or other irreproachable benchmarks, but these must be clearly enumerated. The present wording, apart from being guilty of excessive delegation, creates room for mischief.

Second, the constitutional amendment simply creates the NJAC; an accompanying statute specifies the composition and powers of the NJAC and other key elements. Statutes can be passed by a majority vote in Parliament unlike constitutional amendments, which require a super-majority vote and therefore rarely materialize without bi-partisan support. Incorporating the key elements of the NJAC law in the accompanying statute (and not in the constitutional amendment) therefore removes an important check and increases chances of its abuse. It would not be too difficult, for instance, for a government with a simple majority to amend the statute and substantially alter the composition of the NJAC, giving itself absolute control over appointments. To protect against the possibility of such misuse, it would be preferable to include the NJAC’s composition in the constitutional amendment itself.

Finally, the statute provides for an automatic rejection of a potential appointee if two members of the NJAC vote against her. No reasons need be provided for an exercise of this veto. As such, the veto could be used to block meritorious candidates only on account of their political views. This could in turn spawn a chilling effect, preventing potential aspirants from acting or speaking freely and creating a class of self-censoring judicial officers, innately “committed” to particular viewpoints.

Thus, despite being well intentioned the NJAC law betrays serious flaws that could compromise the Supreme Court’s independence. As an institutional measure aimed at democratizing the appointment process, its rationale is unimpeachable. But institutional reform cannot come at the cost of judicial independence. As the only institution immune to change in India’s winner-takes-all political system, the Supreme Court remains one of the few influential voices that can objectively counteract political excesses. Its outspokenness deserves to be fiercely protected.

That apart, the NJAC law is not just the innocuous attempt at institutional reform it is being hard-sold as. With India’s first clear-majority government in power after two decades, the NJAC law is also an attempt at rebalancing the institutional power dynamic and reclaiming a position of parity with the Supreme Court at a time when Modi’s economic vision is likely to throw up at least a few controversial decisions, much as Indira Gandhi’s did.

The Supreme Court’s eventual decision will hold a similar significance.

Jeet H. Shroff is a Mumbai-based lawyer and a Non-resident Expert with the Vidhi Center for Legal Policy in New Delhi. He tweets @jeet_shroff. Twitter: @jeet_shroff
Neeli Shah is a Washington D.C.-based economics, law, and policy professional. She is a graduate of the Johns Hopkins University School of Advanced International Studies. Twitter: @neelishah

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