The problem

SINCE its creation over six decades ago, the life of India’s Constitution has involved much political contestation and various forms of improvisation. Formally amended over a hundred times and informally interpreted and reinterpreted in countless judicial decisions, the document symbolizes the idea of common citizenship and a shared political allegiance while its practices reveal shifting socio-political norms, ideals, and aspirations. Constitutional challenges in India as elsewhere are hardly static, even if countries must ever so often wrestle with tensions that acquire an enduring character. How do countries negotiate new, changing socio-political landscapes within the terms of already set rules? What kinds of challenges have emerged in India in the recent past and what sorts of new questions do they require us to explore?

One of the most visible and acknowledged trends in Indian constitutional development over the past few years has been the rise of the Indian judiciary. Since the 1970s, the judiciary, and the Supreme Court in particular, has come to acquire a prominence in Indian political life that it lacked in the early years of the Republic. The reasons for this are typically regarded to be the decline of other public institutions, most notably Parliament, and the emergence of a governance void.

The story of the Supreme Court’s rise is a complex one, and an important feature in the story is thought to be the development and growth of public interest litigation, a procedural development that transformed both the character of litigation before the court and the kinds of disputes that became subject to judicial resolution. While a careful analysis of the court’s doctrine over the past three decades might lead to surprising results and suggest that the court is in fact far less activist, as it were, than is popularly imagined, and that in remedial terms it is thought to deliver more than it does, few would deny that hardly any areas of Indian political life are now immune from the court’s gaze. Regardless of the ultimate decision delivered and the vast degrees of deference that exist – important though this is – there is little that has remained outside the purview of the court’s jurisdiction.

Among the most controversial matters on which the court has come to have a role has been the appointment of judges. Through a series of decisions in the 1990s, the court interpreted the rule determining how judges shall be appointed and held that no appointment could be made unless it was recommended by the collegium (the five senior-most judges of the court). Control over the appointments process was ostensibly driven by a need for judicial independence: if the legislature or executive could control who serves on the judiciary, how would the judiciary emerge as being staffed by judges who were truly independent? This concern is legitimate and the problem of judicial independence is a real one. But the collegium system of appointments has invited near universal criticism. Some of the criticism is legal and technical – it is suggested that the Constitution envisages a very different appointments process – but, for the most apart, the criticism has been that the effort towards independence has come at the serious cost of accountability. The current system suffers from, the argument goes, a major lack of transparency.

The appointment system is the most politically charged structural question facing the judiciary today but it is hardly the only one. A different concern facing the operation of the Supreme Court is the structure of benches. Unlike the United States Supreme Court which sits en banc, the Indian Supreme Court operates in different courtrooms. The Chief Justice’s role in determining bench composition and allocation is central, and recent research has indicated the extraordinary power he wields. In recent years, the number of constitutional benches (benches who strength is five judges or more) has decreased and several new, vital doctrinal questions appear before smaller benches. Moreover, there appears to be no clear, standard pattern that determines bench size, and it is not evident that the size of a bench and the legal importance of an issue correspond with the same rigour that they once did. Although this change is subtle, it threatens the doctrine of precedent and has the potential to give rise to decisions that are per incuriam, ultimately threatening the rule of law.

A somewhat different structural question is being faced by another organ: tribunals. Tribunals, with their quasi-judicial character, began with two kinds of promises. First, their truncated procedural set up promised a quicker model of justice delivery. Second, they were initiated in areas where specialized knowledge was thought to matter. Staffed with experts, tribunals hoped to meet the challenges posed by the technical complexity of the disputes they adjudicated. But although there has been simply no research on tribunals and whether they have been successful in achieving these aims, they have grown at an exponential rate. They are now not merely exceptional organs for certain rare, unique kinds of cases; rather, they are fast becoming forums in which central legal questions are subject to resolution.

The thoughtless expansion of tribunals has given rise to two major concerns, which have received far too little attention in discussions on judicial reform. First, despite the fact that tribunals have demonstrated no evidence of performing efficiently, the focus has been on creating new tribunals rather than strengthening the existing judicial system. As is the case with public institutions in India generally, the remedy for declining institutions has been the creation of new ones rather than remedying flaws with existing institutions. The haphazard growth of tribunals has diverted attention from any serious reform of the high courts.

A second major concern regarding tribunals relates to judicial independence. Tribunals are staffed to a considerable degree by bureaucrats, although the Supreme Court has held that judicial independence and the separation of powers doctrine demands that judges constitute at least fifty per cent of the tribunal. Tribunals have become a retirement home for bureaucrats. Apart from the rapid growth of tribunals, therefore, indicating some form of rent seeking, bureaucratic staffing of tribunals raises a critical separation of powers concern: executive encroachment upon the judiciary.

This issue of Seminar hopes to encourage conversation about our current constitutional challenges, and will address each of the aforementioned themes, from the history and politics of judicial appointments to the search for coherence between the different benches of the Supreme Court to our tragic obsession with tribunals. It will also reflect upon institutional, structural concerns outside the judiciary, in particular Parliament. One of the most striking features to have become associated with Parliament has been obstruction by the party in opposition (whichever party that might be). What are the costs of such obstruction and in what way does it threaten Indian democracy? In reflecting upon Parliament, this issue will also study one of the most under-theorized features of India’s Parliament – its bicameral character – by placing it in a comparative constitutional context.

The last year has been one in which several of the above institutional concerns have acquired salience and require rethinking. But it was also a year of some very prominent judicial decisions, whose legal and political impact might be felt for years. Perhaps the most prominent of these was the 2-G decision, in which the Supreme Court cancelled spectrum licenses that had been awarded through an allegedly arbitrary process. The court’s decision granted enormous legitimacy to the anti-corruption movement, and represented an instance in which it took a strong stand against the executive backed by major remedial implications. But was the decision ground in sound administrative law doctrine or was it more rhetoric than reason?

Another landmark decision was the upholding of the constitutionality of the Right to Education Act, a law which imposes conditions on private educational institutions and demands that they admit a certain quota of underprivileged children. The decision was widely praised, and the impugned law has been regarded as a path-breaking social justice measure (although its precise drafting and policy requirements are thought to leave much to be desired). But, despite its alleged benefits, to what extent is the court’s decision sensitive to the character of horizontal rights under the Constitution and does it sufficiently acknowledge the right to freedom of profession?

These are only some questions that currently dominate Indian constitutional law debate and suggest avenues of inquiry that might be pursued. Others of great significance at the moment include the question of land acquisition and the right to property or the relationship between constitutionalism and the economy. This issue of Seminar hopes to intervene in the ongoing debate around such questions, and further explore constitutional challenges in a rambunctious democracy.

MADHAV KHOSLA