Modi’s Reform Push Faces Tough Judgment From India’s Top Court

  • Next chief justice expected to continue independence battle
  • Supreme Court ‘last citadel of resistance’ against government

Chief Justice of India TS Thakur.

Photographer: Sushil Kumar/Hindustan Times via Getty Images

Famous for wiping away tears during an appeal to Narendra Modi for help with a backlog of more than 30 million court cases, India’s chief justice has emerged as one of the prime minister’s toughest critics.

From New Delhi’s choking pollution to Modi’s failure to appoint an anti-corruption ombudsman, Chief Justice T.S. Thakur -- who retires in January -- is a powerful, non-partisan voice of dissent in a capital increasingly dominated by Modi’s ruling Bharatiya Janata party.

The Supreme Court’s rebukes, most recently over the move to invalidate 86 percent of India’s currency, are noteworthy because the judiciary is asserting itself at a time when Modi faces no real challenge from a severely weakened political opposition. And as Thakur prepares to step down on Jan. 3, there are already signs his successor will pursue a similarly proactive course.

"It’s not unknown for the Supreme Court to be the last citadel of resistance against an overpowering government of the day," said Sanjay Hegde, a senior advocate in the Supreme Court. "Chief Justice Thakur is normally a conservative man, but even he has seen it fit to voice -- and to allow to be voiced -- questions about the dominant narrative."

Proactive judiciary

Modi’s difficulties with the judiciary, which worsened in August 2014 when the parliament passed a law that sought to give the government a say in the appointment and transfer of judges, are unlikely to end with Thakur’s retirement. 

His successor is expected to be Justice J.S. Khehar, who led the panel of five judges that later struck down the law. Maintaining it was unconstitutional, Khehar said the government should not be able to appoint judges in order to ensure the judiciary remained "insulated and independent from the other organs of governance."

He has also publicly disagreed with the government’s top lawyer by advocating for a proactive judiciary. Neither Khehar nor Thakur could be reached for comment.

In a Nov. 26 speech, Attorney General Mukul Rohatgi said India’s constitution placed limits on the judiciary.

Khehar had a different view. "The judiciary is mandated to shield all citizens against discrimination and abuse of state power," he said at the same event, noting that India’s judges have been "courageous in promoting the cause of unprivileged and disadvantaged."

Previous coalition governments had accommodated the judiciary through backroom channels, said Supreme Court senior advocate Gopal Jain. But the BJP doesn’t need to "budge an inch" on disagreements with the chief justice because "they feel they have the support of the people" with a parliamentary majority in the lower house.

"There’s a tug of war on," Jain said. 

Make in India

One of Thakur’s main criticisms is that Modi’s government has failed to approve the Supreme Court’s picks to fill some of the more than 400 vacancies in India’s state high courts. The logjam means fewer judges to handle the country’s daunting backlog of cases, each of which can take years or even decades to wind through the overburdened system. 

This worries the very foreign investors Modi wants to lure with his "Make in India" campaign to boost domestic manufacturing, Thakur said.

"We are inviting foreign direct investment into the country. We want people to come and invest in India," Thakur said onstage with Modi at an event in April. "But those whom we are inviting are also concerned about the ability of the judicial system in the country to deal with cases and disputes that may arise out of such investments."

There’s no doubt foreign investors seek a climate of business security and judicial certainty, said A. Didar Singh, secretary general of the Federation of Indian Chambers of Commerce and Industry. "The economic cost of judicial delay can be high and impacts business confidence."

A senior government official, who asked not to be named citing rules, denied Modi’s administration was stalling on judicial appointments. The official told reporters the government had approved 120 appointments in 2016 against an average of 80 per year since 1990. As of March 31, there were 442 vacancies in state high courts, according to a Supreme Court report.

"The accusation is that we do not work, yet we have made the second highest appointments since 1990," the official said. "We have done our best."

A spokesperson for the prime minister’s office did not respond to requests for comment. 

Other Criticism

Thakur has not just focused on the appointment of judges.

Last month he questioned why Modi’s government was "dragging its feet" on appointing an anti-corruption ombudsman when he was "so committed to cleansing corruption," and lashed out at the Reserve Bank of India in April for not revealing the names of loan defaulters. 

Thakur called New Delhi’s pollution "embarrassing" in December 2015 and criticized politicians for not coordinating to tackle the problem. He said the government’s plan to establish special commercial courts for corporate disputes was "simply putting the old wine in a new bottle." Recently, the Supreme Court rejected the government’s request to stop lower courts hearing cases against Modi’s currency ban.

The judiciary was the only institution still standing up to the prime minister and his government, said Prashant Bhushan, a public interest lawyer, activist and a political opponent of Modi. This is why the prime minister has refused to help Thakur with the approval of more judges -- an act he described as "an attempt to cripple the judiciary."

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