Mehta, Pratap Bhanu, “India’s Judiciary: The Promise of Uncertainty”

Mehta, Pratap Bhanu, “India’s Judiciary: The Promise of Uncertainty” in Public Institutions in India: Performance and Design. Ed. Devesh Kapur and Pratap Bhanu Mehta, New Delhi: Oxford University Press, 2005, 158-193.

SUMMARY: Looks at the evolution of judicial review, judicial independence, and judicial activism in India. Examines how the judicial branch interacts with other branches of the government, its effectiveness, whether it’s increased power is a result of increased constitutionalism, and the problems the judicial branch faces.

158-Inida’s judiciary: 3-tiered, Supreme Court at the apex, each state has high court and district level courts; the Supreme Court, established 1950 (as successor to the Federal Court); it is “extraordinarily powerful”, (159) it limited Parliament’s power to amend the Constitution, and has “routinely made law; it has made public policy pronouncements; held executive bodies accou8ntable, and has directly taken over the supervision of executive agencies.”, (160) “It has cast itself as the ultimate custodian of conditional values and the highest institution of accountability.” Though “most of the [other] institutions of the judiciary remain in a permanent state of crisis”—“inefficiency, poor enforcement, corruption”

160-says the paradox of growing judicial power and increased “corrosion” was a worldwide phenomenon

160-goals for article: looks at the evolution of judicial review, judicial independence, and judicial activism in India; asserts “India is a case where judicial power more or less creates (and therefore destroys) itself.” And (161) “the episodic, uneven, and unpredictable assertion of judicial power and the structure of the Supreme Court militate against the emergence of constitutional politics.”, he adds that “the recent court decisions concerning how judges to the high courts are to be appointed, are an instance of the judiciary creating its own power. Through these decisions the judiciary has managed to secure its independence from the executive/legislature, but at the cost of shielding itself from public scrutiny; and “much of the crisis of the Indian civil justice system can be traced to an accumulation of procedural anomalies that create huge perverse incentives for judges and lawyers.”


162-contrary to the idea that federalism creates independent judicial review, (163) in India “It seems that the character of judicial review could determine the nature and scope of federalism…”; and India’s example also goes against the “separation of powers hypothesis” which says that when constitutions have “strong separation of powers amongst the various branches of government would also in all likelihood have strong traditions of judicial independence and power.”, (164) and that in parliamentary systems judicial review is weak—and the opposite is proving true in India

164-judicial review is needed for “emerging traditions of rights discourse in the court itself’; (165) in Indian society, people have been “less devoted to a civil liberties rights based discourse”, so court interventions have been legitimized “based largely on the idea that government ought to be forced to intervene in certain areas to achieve ‘substantial goals’, whose content is largely defined through the framework set out in the Directive Principles of State Policy. In doing so the courts have had to strike a balance amongst the competing rights at stake. It is far from clear that the courts have evolved any clear criteria or tests to guide competing interests (say between ‘environment’ and ‘development’) but the goals of equality have given the courts occasion to flex their judicial might.”—plus “court interventions have been widely seen as legitimate, or at least tolerated, because the representative institutions are widely seen as being immobilized, self-serving, corrupt, and incapable of exercising either their basic policy prerogatives or their powers of enforcement.”


165-Though the relationship between the judiciary and the executive/legislature “has often been contentious”, eg in the first years after Independence, the courts, against the views of the executive, aligned their view of property rights with the propertied classes and (166) impeded government land reform; they also denied due process, and was seen as opposing I. Gandhi’s agenda in the 1970s like nationalization of banks and the abolition of privy purses, and began its trend of asserting itself as the “custodian of the basic structure” of the fundamental rights elaborated in Part II of the constitution, and invalidated I. Gandhi’s election, and 1976 made a ruling that allowed for deprival of personal liberty in times of Emergency


168-the Supreme Court is an important player in Indian politics, it has “struck down hundred of central and state laws”; about half of the first 45 amendments were to limit the court’s power—it’s (169) not clear as to “who is the final arbiter of the Constitution”, see for example the Shah Bano case

170-says the Court realizes that its judgments open it up to attempts to limit the Court’s power, so “most judgments are a delicate and political balancing of competing values and political aspirations; they seek to provide a workable modus Vivendi rather than articulate high values.”—and this can explain why it gets involved in some issues and not others: they don’t like to go too much against popular opinion, (171) especially on “certain classes of religious disputes” like the Babri Masjid case that “languished in Indian courts for fifty years”, they are more prone to call executive agencies for corruption than for communal violence


171-and increased judicial review does not mean increased Constitutionalism (what the author defines as “a commitment that the interactions of actors be governed by an authoritative set of rules.”), because there’s no reason to assume “any set of rules…can be fixed and insulated from politics simply as a matter of constitutional design. When (172) we claim that some rules carry such authority we are making a statement less about constitutional design than the fact that there is a consensus in society around those rules. I take it to be the case that for constitutionalism to emerge there has to be a prior overlapping consensus on the values such constitutionalism would embody. Constitutionalism is the result of social consensus, not institutional design and is only as robust as the former.”; plus there’s little enforcement of government or judicial rulings plus rulings are seen, because average tenure on the Supreme Court is so short, as “an artifact of predilection of particular, judges rather than the court as an institution”; plus it’s unclear if decisions made by small benches override older ones by large benches—causing confusion in lower courts


174-the judicial branch has a lot of power determining which judges are let on—making it very independent from legislative and executive influence; (175) the Supreme Court has tried to prevent executive influence, (177) though it’s “less than clear that the executive produced ‘bad appointments’.”; “judicial preferences in appointments has escaped systematic scrutiny’” (175) and there also are no agreed upon criteria for what makes a good judge nor any public forums for debate on the subject

181-“…the higher branches of the judiciary are extremely reluctant to deny admission of appeals; depending on the jurisdiction as many as seventy per cent of all appeals filed will be admitted. This must be considered a tacit acknowledgement of the courts’ recognition that on the average there are prima facie grounds for supposing that the procedures of the lower courts are faulty.”, and more than half the courts’ work is “passing and assessing interim orders”, though court fees are low, ensuring easy access


-the judiciary is under financed; India has around 10.5 judges per 1 million population, “amongst the lowest rates in the world”; (182) they “do not have a natural political constituency or source of power that can be used to put pressure on the government for more funds.” And they have no support staff (not even law clerks)

182-“To describe the Indian civil justice system, especially at the level of low the Supreme Court, as being in a perpetual state of crisis, would be an understatement. As an institution, almost all levels of the judiciary exhibit what can only be described as administered chaos…Judges are excessively passive in an adversarial legal system; excessive party control allow respondents to delay cases with impunity…”, “Records of filings are mostly kept by hand, documents are difficult to trace, judges oral summarize testimony for court recorders,” judges are transferred fast; (183) “too many” delays in filing cases; deficient filings are half to 2/3, though they are seldom dismisse4d and still allowed to be seen in court (something that doesn’t happen in more efficient bureaucracies)—though deficiencies are due to incompetent lawyers, but there are no serious mechanisms for controlling incompetent lawyers; it’s very difficult, due to poor organization of info, to consolidate similar cases; (184) schedule of days cases are usually not posted until night before, making a lot of no-shows, wasting a lot of time; discovery and filing of documents happens physically in court—taking up a lot of time; they have little legitimacy to compel witnesses to appear; (185) judges are rotated every couple months between panels and every couple years between courts—causing multiple judges to learn the same case, disposal rates are very low compared to instances of non-rotating benches (which lawyers and the Bar oppose); judges are passive, allowing many extension, etc.; interim relief and easy and cheap availability of lawyers and court fees induce low settlement rate


187-reform seems to daunting to start; but when the Supreme Court was computerized in 1994, its (188) backlog of cases was reduced from 120000 to 20000

188-“The single biggest weakness of the Indian justice system is its legal profession.”; 336 lawyers/1 Million population (“apparently a high number by developing country standards”), but it is mostly poor quality, little specialization, (189) the Bar rejects most reforms, like the non-rotating bench issue which is opposed because lawyers get paid for court appearances only, and non-rotating benches would speed up process and make less court appearances—lawyers strike when reforms are proposed; (190) the Bar generally feels that commissioners and other outside people that make some rulings aren’t neutral so they avoid out-of-court settlement and aim for mostly trials; (192) plus deteriorating standards in law school and for Bar