The Supreme Court of India is the most powerful court on the planet. It probably is the only apex Court that is also the court of the first instance. Under Article 32 of the Constitution of India, a citizen can approach it without recourse to any other court, complaining of violation of fundamental rights. The founding fathers felt it necessary to provide so because they were concerned for the lives and liberties of the citizens, for the horrors witnessed during the colonial rule.
The constitution of India is a perfect blend of the concepts of federalism and that of a centralized government. It envisages a Parliamentary form of government where the Cabinet is accountable to the legislature/people for its survival, every moment. Unlike the presidential form of government, a Parliamentary form of government is less stable, but more accountable to its people. A government in a Parliamentary system is, therefore, less likely to abrogate fundamental rights. Therefore, the room for judicial review of legislative and executive action ought to be less pressing. As such, the Judiciary is not expected to be involved with legislative and executive policies because the government is accountable to the people for its every action on a day-to-day basis and cannot disregard basic rights with impunity.
The framers of the Constitution did not envisage to the judiciary, a role beyond that of primarily adjudicating the dispute between citizen and citizen. Dr Ambedkar said so in so many words. They anticipated the litigation involving the government to be minimal. Yet, based on the painful experience of the freedom struggle, the founding fathers, under Article 13 provided that, any law, which includes all executive action, violative of the fundamental rights guaranteed under the constitution is void ab initio. It gave the word 'state' an exhaustive meaning to include every instrumentality of the state. One could not have imagined a constitution more concerned with human rights than the Indian constitution.
While the constitution provided for every means to protect the fundamental rights of the citizen, it did not contemplate in the least the dilution of the concept of a government responsible to the people through the legislature. The basic framework of the Constitution of India is the Government of India Act of 1935, enacted by the British Parliament. The Act provided for a federal structure, with a legislature and executive at the centre and the provinces. In England, the Parliament is supreme. The law which has received the assent of both houses of Parliament and the Queen is not amenable to judicial review. The House of Lords, the upper house of the Parliament, being the highest judicial tribunal, the concept of judicial review is even incongruous. Unlike in England, the concept of judicial review was recognized and was in practice in India even before the constitution coming into force. The Government of India Act was a constitutional act. Contrary to the Government of India Act, any legislation of the federal/provincial legislature was ultra vires and void. Such power was exercised by ordinary civil courts.
The founding fathers could not have imagined a day would come when every action of the legislature and the executive will be challenged in the Supreme Court and High Courts. Today, in the form of "Public interest" litigation (as opposed to pro bono litigation), not merely an act of Parliament, but almost every decision of the executive is challenged. To say that the judiciary today rules India is no exaggeration.
The founding fathers had envisaged the separation of powers, with the legislature, executive and judiciary, supreme in its province, which would ensure checks and balances, and smooth governance of the country. They did not contemplate the Supreme Court to be a court first instance, except for the enforcement of fundamental rights, to issue writs like habeas corpus, mandamus etc. It contemplated the civil courts to be the true constitutional courts of plenary jurisdiction, the court of the first instance, as is the case in the U.S. India is an example that even the best-written constitution can fail on the actual ground.
The legal profession in India, at the time of independence, was almost the exclusive domain of the elite. Article 32 of the constitution which was not intended to be a provision for judicial review came to be only too handy a tool at the hands of the elite class of lawyers to challenge every law enacted by the Parliament and every action of the government. A full court of the Supreme Court in 1973, held that the Parliament's power to amend the constitution is limited and that the "basic structure" cannot be amended. On the face of it, the decision of the court was one to preserve the constitution. But thereafter cases came to be filed in the Supreme Court complaining no violation of one's fundamental rights, but infringement of the basic structure.
Unbelievably, using the doctrine of basic structure, the Indian judiciary usurped to itself the power of appointment of judges. A 9-judge bench of the Supreme Court, in 1993 in what is popularly known as the 'Judges-2 case', held that "independence of the judiciary is one of the basic structures and its core is in appointments" and not in the independent discharge of functions post-appointment, and that the core is protected when the opinion of the Chief Justice of India has primacy. It further held that the opinion of the Chief Justice of India is not his opinion, but the collective opinion of the plurality of judges, nay, the collegium. In the name of the interpretation of the word 'consultation', for the Constitution mandates the President to consult the Chief Justice of India, the judges by a judicial coup re-wrote the constitution and created a new institution called the 'collegium', the ultimate authority in the matter of appointment and transfer of judges.
The collegium proved that blood is thicker than water. Since the judges started appointing themselves in 1993, they indulged in naked nepotism. They almost only appointed their kith and kin, so to that of the powerful lawyers of the Supreme Court.
The spurious theory of basic structure led to yet another spurious jurisprudence called PIL (public interest litigation). PIL can be equated to the concept of class action in the U.S. But there is a big difference. Class action litigation requires a large number of persons aggrieved, in whom the law will entail remedies. There is a real justiciable dispute (LIS). India's PIL is different. It is not about justiciable issues, involving a LIS, but is about governance or legislative policies, where the will of the people through their elected representatives, alone could matter.
The PILs made the Courts extremely powerful. There is no body to regulate the Court. It is accountable to none. The politicians, either corrupt or out of ignorance, meekly succumb to the Supreme Court assuming the role of the legislature and executive, all at once. Some found it profitable to get their progenies appointed as judges. Almost 30 years down since the 'Judges-2 case', one finds that the Supreme Court has become the monopoly of a few judicial, legal and political dynasties. It is so manifest that it requires little elaboration. For instance, all the past five Chief Justices appointed under the collegium system, except one, are the sons/nephews of the judges of the Supreme Court/High Court/Advocate General/Chief Minister.
The 'Judges-2 case' mandates that the Chief Justice of India shall be appointed based on seniority. Therefore, one knows who the future Chief Justices would be. All, except one, of the 5 future Chief Justices are the sons/nephews of the Chief Justice of India/judge of the Supreme Court/judge of the High Court/Governor. The position is no different in the case of the High Courts. There is hardly anyone outside of the elite club of lawyers, judges, and high-ranking politicians. The collegium has destroyed the concept of diversity and inclusiveness in the higher judiciary. In 2015, at the initiative of Prime Minister Modi, the political class showing a rare unity, amended the constitution to do away with the collegium and replace it with a National Judicial Appointments Commission (NJAC) to the great chagrin of the beneficiaries of the current system. However, the said amendment, the will of the people, to the dismay of the ordinary class of lawyers and judges who constitute to be the overwhelming majority, was struck down by the Supreme Court, holding it violative of the "independence of the judiciary", the sacred "basic structure" of the constitution!
One might wonder how, in India, a vibrant democracy with a free press, could the judges execute such a coup and that too so smoothly. It was possible because the Supreme Court of India is like the court of the Medieval kings, who ruled with the help of the nobles and Barons, whom he nominated to his council. In India, the justice dispensation system has been reduced to be the private domain of a few elite dynasties. They have preserved their stronghold over the system by appointing their kith and kin and their favourites as judges and senior lawyers to the exclusion of more deserving lawyers who hail from humble backgrounds.
(The author is the President of the National Lawyers' Campaign for Judicial Transparency and Reforms)