In the latest edition of the EPW, PK Suresh Kumar discusses the implications of a recent arbitral award in Singapore. In (White Industries Australia Limited and the Republic of India 2011) the arbitral tribunal criticized the Indian Supreme Court for delays and directed the Union government to compensate the company for the delay.
Suresh Kumar’s critique of the judgment is based on the idea of judicial sovereignty By holding the executive liable for judicial delays, would imply either imply the lack of independence of the judiciary or create an incentive for the executive to intervene in judicial enforcement. The author is scathing in his critique of bureaucrats, who he believes have compromised India’s judicial sovereignty by drafting the investment treaty badly.
The article is interesting for two questions it opens up
1) Is there a distinct entity judicial sovereignty? With increased globalization of economic and human rights regimes, ideas of national sovereignity have undergone dramatic changes. In India, the Supreme Court has already held in the GATT and WTO cases that the Union government may transform the constitutional separation of powers between the state and the centre by taking on international agreements. Could this analogy be extended to the separation of powers between the executive and judiciary?
2) What sort of claims for compensation for judicial delays be made in domestic situations, given that the right to speedy trial has been recognized as part of the right to life?
The relevant order can be found here (HT: Nick Robinson)