Forget Modi, Someone Else Is Running India's Show

  • Supreme Court's speedy moves contrast with parliament gridlock
  • "The separation of powers is totally destroyed," Deva says

Narendra Modi, India's prime minister.

Photographer: Nicky Loh/Bloomberg

As India’s politicians bicker, its Supreme Court judges are taking the lead in shaping policy.

In the past six months, Indian courts doubled a tax on commercial vehicles entering Delhi, banned bullfighting and -- most controversially -- struck down a constitutional amendment that would give politicians a role in picking judges. Soon they will decide on the legality of 4G mobile-phone licenses and mining activities in the south.

The speed at which India’s courts are handing down decisions contrasts with Prime Minister Narendra Modi’s struggle to push major legislation through parliament, including a national sales tax. The power of judges has also spawned a debate: Proponents view them as an antidote to India’s gridlock and a check on corrupt politicians, while detractors see a threat to democracy and a risk for investors.

India’s judiciary is “acting like a legislature," according to Surya Deva, an associate professor at City University of Hong Kong’s law school who has called India’s Supreme Court arguably "the most powerful court in the world." Judges can make laws, monitor implementation and resolve disputes, he said.

"There is too much concentration of power in judiciary because they are trying to do everything together," Deva said by phone. "The separation of powers is totally destroyed."

Rakesh Sharma, a public relations officer at the Supreme Court, said by phone he wouldn’t comment on criticism that judges are amassing too much power. He also declined to make any justices available for comment.

As prime minister, Modi is limited to setting policies that are then implemented by federal departments and India’s states. To pass laws, his party must get them through both houses of parliament, where 776 elected members represent all of India’s 1.3 billion people.

India’s 26 Supreme Court judges, by contrast, are picked behind closed doors by five senior jurists. They can review any law passed by parliament, initiate legal proceedings and give multiple directives in cases that can stay open for decades.

Part of their immense power stems from the introduction in the 1970s of public interest litigation, known locally as PIL.

‘Unique’ Power

"This concept is unique to the Supreme Court of India only and perhaps no other Court in the world has been exercising this extraordinary jurisdiction," the court says on its website.

Originally designed to allow the poor to directly ask the court to rectify injustices like prisoner abuse, gender inequality and environmental destruction, the scope of PIL cases has widened over the years. The Supreme Court has since weighed in on everything from burning garbage to loudspeaker restrictions to how much food soldiers should give hostages taken by Kashmir militants.

The court’s decisions routinely affect companies. In 2012, the Supreme Court canceled 122 telecom licenses after deeming the allotment of spectrum “unconstitutional and arbitrary." Two years ago, it voided mining permits and asked for fresh auctions.

Diesel Cars

Mahesh Chander Mehta, an environmental activist and lawyer, brought one of the most famous public litigation cases in 1985 to stem pollution from vehicles in Delhi. The case has since resulted in dozens of directives, including one in December that banned the registration of larger diesel vehicles in Delhi for three months.

“If government agencies fail to act, what will people do other than going to court?” Mehta said.

Every Supreme Court decision poses a threat to some companies and opportunities for others, according to Girish Vanvari, head of tax at KPMG in India. They can create uncertainty in the investment climate if rulings are made abruptly without detailed explanations and reasonable timeframes for implementation, he said.

The auto industry says that was exactly the case with the court’s ruling on SUVs, which came as a blow to manufacturers like Toyota Motor Corp. and Mahindra & Mahindra Ltd. Many companies had increased capacity and added models based on growing demand stemming from years of subsidies on diesel fuel.

‘Knee-Jerk Reaction’

The court’s “knee-jerk reaction” is not helping improve air quality but “badly hurting some sections of the industry,” Vishnu Mathur, director-general of the Society of Indian Automobile Manufacturers, said by phone. “Investors will not come unless there is clarity."

The role of the judiciary in India has been debated for decades. In 2008, former Chief Justice K.G. Balakrishnan said that Indian courts play a “very different social role" than in more developed countries.

"The main rationale for ‘judicial activism’ in India lies in the highly unequal social profile of our population, where judges must take proactive steps to protect the interests of those who do not have a voice in the political system and do not have the means or information to move the Courts," Balakrishnan said.

The weakness of successive coalition governments over the past few decades has created space for judicial activism, according to E.M. Sudarsana Natchiappan, a lawmaker with the Congress party who is also president of the Indian Society of International Law.

“It is high time for a self-correction," he said.

India’s politicians have sought to rein in the courts. In 2014, lawmakers passed a constitutional amendment to give the prime minister, law minister and opposition leader a voice in picking justices. That would replace a “collegium" of judges that makes recommendations to the president.

‘Tyranny of the Unelected’

In a ruling that exceeded 1,000 pages, the Supreme Court struck down the amendment in October, saying it would violate the “basic structure" of the constitution.

Finance Minister Arun Jaitley, a lawyer by training, said the decision was based “on a rationale that India’s democracy has to be saved from its elected representatives."

“Indian democracy cannot be a tyranny of the unelected," Jaitley wrote.

That doesn’t mean the government has no say. Gopal Subramanium withdrew his name for consideration after news reports emerged that the government asked the collegium to reconsider the appointment. Subramanium, a former government lawyer, was seen as a Modi opponent.

A Pew Research Center poll last year showed that more people had confidence in the national government than the courts, a reversal from 2014. Even so, the Supreme Court still has a good public perception, said Prem Shankar Jha, who has written about Indian politics since the 1960s.

“If you try to get something done, there is no one in the government to help you," Jha said. “The judiciary has become the last hope of ordinary people."

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