SC as an institution of constitutional governance – Harish Salve’s lecture at Oxford

I am reporting former Solicitor General, Harish Salve’s talk at Exeter College, University of Oxford on 12th March 2008. It was a fascinating intervention on the debate on the ‘activism’ of the Indian Supreme Court. His argument followed three broad trajectories:

1. Why the Indian Supreme Court was imagined as a unique institution that was not supposed to conform to the traditional separation of powers paradigm but rather become an institution of constitutional governance (and how it has mostly lived up to these expectations).
2. Why some of the claims regarding ‘activism’ of the Court are misguided.
3. Why, the two points above notwithstanding, there are reasons for legitimate worry on the question of judicial activism.

I will elaborate each of these points below.

An institution of constitutional governance:
To understand the Indian SC, Mr. Salve says, one has to understand India in its unique diversity and deep contradictions. The constitutional makers obviously shared with all constitution makers worries about the imperfections of any democratic model. However, Indian contradictions on the lines of caste, religion, class and regions meant that shifting and unstable political majorities (not merely parliamentary majorities of the governments of the day but also political majorities forged by various social groups) were inevitable. He cited the shift of the balance of power from the central to state level post nineties as one example that vindicates this suspicion. This inherent instability in our political system was sought to be balanced by envisaging a Supreme Court that played by some basic (and unchanging) rules not merely as an adjudicator of disputes between these political groups but as an instrument of governance itself. Thus, the Indian Supreme Court could not have followed the traditional model of separation of powers.

Evidence of this idea is rooted in Article 32 of the Constitution which makes the right to judicial remedies the ‘heart and soul of the Constitution’ (in the words of Dr. Ambedkar). The SC extended this idea in evolving the basic structure doctrine, public interest litigation, reading socio-economic rights and due process in Article 21 etc.

Not so ‘activist’ after all:
Whereas the above-mentioned judicial developments were unusual for constitutional courts and may be called ‘activist’, certain other actions of the SC are not so (contrary to popular belief). Here he takes particular issue with Prof. Rosencranz’s criticisms and defends the SC’s decisions in the Delhi CNG buses case and the Forests Case.

CNG buses – Mr. Salve claims that the SC did not order the Delhi buses to convert to using CNG (compressed natural gas) instead of diesel. He explained the legal reasoning of the case thus: The Environment Protection Act (EPA) empowers the government to protect the environment, which the SC held to imply a duty to protect the environment as well (after all, the Fundamental Duties chapter of the constitution imposes such duty on all citizens). Where a statutory duty is violated, a mandamus lies. The SC directed the government to set up an experts committee that the govt. was empowered (obliged?) to set up under the EPA.

The committee was set up and notified by the government. It met all stakeholders and recommended a switch to CNG. The SC told the government that under the EPA, the recommendation of the committee was binding on the government and asked the government to comply.

The bottomline is that policy was not decided by the court but by the Executive. The Court only forced the Executive to take a decision and then to implement it.

The second case Mr. Salve explained in detail was the Forests case. The Forests Policy of 1980 required central approval for diversion of any forest land for non-forest use, but did not define ‘forest’. The only statutory definitions available were in colonial revenue laws which viewed forests as exploitable properties of the local ruler, and thus narrowly defined. The SC held that for the purposes of protection of forests, such definitions were inadequate and used the dictionary meaning instead. All the Court did was to insist on strict implementation of the policy by adding teeth to it. He dealt with several nuances of the case, including the composition of the Forest Advisory Committee, the cut-off date of 1980 to determine ‘encroachers’ etc to elucidate his point.

These cases, Mr. Salve said, illustrate that the SC has mostly been only insisting on holding the Executive to account to the legislative mandate or its own policies, while disallowing extraneous considerations to affect decisions – this is a classic judicial review function.

Worry:
Mr. Salve said that there are reasons to worry about the current state of affairs. The governmentality of the SC has evolved such that the Executive of the day is more than happy to transfer all controversial issues to the Court (cites the latest affidavit in the Sethusamudram issue as an example). This is coupled with an enormous and ever-increasing burden of public expectations from the Court and decreasing public faith in the legislature and the executive. This disprportionate burden of public expectations is reflected not in the PILs that are admitted by the SC but the hundreds of deserving PILs that are rejected because the judiciary just cannot keep up. On the chicken-and-egg question of whether judicial activism led to executive lethargy or vice versa, Mr. Salve emphatically rejected the former.

The system is strained and if unchecked, may collapse because the SC will find it increasingly difficult to live up to these expectations. The only remedy lies in the revival of the legislature and the executive branches as trusworthy organs of government that can deliver.

In response to a question, Mr. Salve said that the next logical step in constitutional adjudication in India will be to develop a hightened standard of scrutiny in fundamental rights cases (which will probably be settled by the decision in the Mandal II case where he argued for strict scrutiny).

In response to another question, he said that the Court’s demand of an apology from a journalist who managed to get arrest warrants against the President of India and CJI from a local court in a sting operation was deeply troubling.

He also agreed that the current system of judicial appointments needs to change.

(I have tried to report as faithfully as possible, but if anyone present at the talk can point out any error, I will happily correct it).