Supreme Court is being transformed into a stern headmaster
Ranjeev C Dubey August 27, 2018
When the Chief Justice of India announced on August 20 that the judges would contribute funds to help relieve Karala from the flood fury, no one protested that the judiciary is the last institution we should expect to make cash contributions to worthy causes. A cursory glance at the Union Budget 2018 should have attracted national outrage. Out of a total budget of Rs 21.47-lakh crore, the Finance Minister earmarked Rs 1,744.13 crore for the administration of justice in India. This means that on the whole, India spends 0.08% of its national budget on its quest towards a just society! That's just the beginning. Of this sum, the Supreme Court of India absorbed Rs 251.06 crore, which is about 14% of the total equal to 0.012% of our national budget. Given how little we pay for it, how can the people of India cast such a heavy moral burden on the Supreme Court at all?
By way of comparison, the budget allocated Rs 385 crore to the upkeep of the Special Protection Group, which provides security to the current and former Prime Ministers and their families. I see no irony in the idea that India pays less for justice for its people than it does to protect Prime Ministers and their families from the wrath of the people of India!
Even that's not the worst of it. We have 22 judges in the Supreme Court of India who will work 193 days within 2018. That gives us 4,246 judge days or 33,968 judge hours. Crudely put, India pays a mere Rs 73,910.74 for every hour a Supreme Court judge work for the nation. A great many mid-priced Supreme Court counsel would be offended if I offered them these low charges for an hour-long conference.
What really bothers me though is not that we pay not enough for justice: it's that our political classes enmesh our judiciary in all sorts of time wasting redundant squabbles, appropriating precious judicial resources that could be better utilised elsewhere. This has now acquired epidemic proportions. Two recent examples will make my point. On July 17, 2018, the Supreme Court delivered its 'anti-lynching' judgment in the Tehseen S Poonawalla case to universal acclaim in the English print and electronic media. While the petition had initially been filed against the activities of cow protection vigilante groups, in-court dynamics widened it to include issues of lynching and mob violence. Did India need procedural and substantial safeguards against the nocturnal activities of these self-appointed guardians of the law?
The court agreed they did. In culmination, it prescribed a succession of preventive measures which amongst others (1) ordered the appointment of a 'nodal officer' in each district tasked to prevent incidents of mob violence (2) directed the home department to issue directives to police stations, (3) prescribed monthly meetings between cops and 'district intelligence units', (4) prescribed measures to sensitise the police to identify and prevent mob violence, (5) register FIRs against those who 'disseminate irresponsible and explosive messages and videos with content likely to incite mob violence' and so on and so forth. The court followed this up with a succession of remedial measures which granted to victims compensation for injury, legal aid on request and a right to be represented at the trials of perpetrators, amongst others. Punitive measures were prescribed too including departmental action against negligent public servants. In the end, the court directed parliament to create a separate offense of 'lynching'.
As I read this judgment, I struggle to see why India needed the Supreme Court to say any of what it did. We have here a long list of preventive measure that look a lot like stuff that every administration everywhere in the world is expected to do anyway. These are followed by a couple of remedial measures that Indian politicians routinely announce and then equally promptly forget to implement. The punitive measures are such as already exist on the rule books. At a very quick glance, I can spot 8 different crimes that a lynch mob is capable of committing on the face of it: Murder (302) and culpable homicide (304) attract life; Attempt to murder (307) attracts ten years; Causing Hurt (323) attracts one year; Grievous Hurt (325) attracts seven years; rioting (147) attracts two years; Rioting with deadly weapons (148) attracts three years; and promoting religious or race enmity (153A) attracts three years. The enforcement of these crimes is fortified considerably by our Criminal Conspiracy (34 read with 120B) and unlawful assembly (149) laws which make all participants equally guilty no matter what they individually did while located in the mob. Does India need to create more laws or will we do better to simply enforce the laws we already have?
Still, there may be merit in this judgment in that rowdy kids do need to be lectured from time to time. When it comes to the comedy central show between AAP and the Lt Governor of Delhi, can we even justify the judgment as a case of a regrettably necessary pep-talk? Consider the issue.
In 1991, Article 239AA was added to the Constitution of India to enable the administration of Delhi as a National Capital Territory. Sub section (4) of this provision empowers the Council of Ministers of Delhi to "aid and advise" the Lt Governor of Delhi. Its proviso states that if there is a difference of opinion between the Lt. Governor and the Delhi Government on "any matter", the Lt. Governor can refer this to the President of India for a decision. It is self-evident that the Delhi government runs the show, not the Lt Governor. The law certainly does not say that the Lt Governor can sit on a file indefinitely if he does not agree with the Delhi government.
Despite the obvious legal situation, in 2015, the question arose whether the Lt Governor was bound by the 'aid and advice' of the AAP Government. When the case wound its way up to the Supreme Court, a Five Judge Bench of the Court concluded that the Lt. Governor needs to bear in mind that he does not have any independent authority: that decision-making authority in a democracy lies with the executive, i.e. the Delhi Government. The court concluded by ruling that under Article 239AA(4), the Lt. Governor is bound by the aid and advice of the Council of Ministers of Delhi, unless he decides to exercise his power under the Proviso to refer differences of opinion to the President.
Just so I can make my point, bear with me and read the provision of law that the court interpreted:
"(4) There shall be a Council of Ministers consisting of not more than ten per cent, of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion:
Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the mailer, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to given such direction in the matter as he deems necessary."
I must admit that try as I might, I cannot see what it is in these provisions that were not clear to the political classes at all times or required the Supreme Court to expend more time rendering a decision. So why is the Supreme Court forced into this situation? The answer can only be that this is the inevitable result of the deterioration in the political climate. Everyone knows the law, but the politicians act like they don't and pander to their self-interest in flagrant violation of the law while posturing a self-righteously innocence. The ensuing circus spins out of control, forcing the apex court to intervene to restore sanity. This is now occurring with increasing frequency.
Any which way we look at it, India is proceeding on a course that will result in a radical change in the functions the Supreme Court performs. From an interpreter of the Constitution, the Supreme Court is being transformed into a stern headmaster constantly compelled to lecture infantile students who refuse to do their homework and compound their misdemeanor by constantly cost cutting on the headmaster's remuneration.
The author is Managing Partner of the Gurgaon-based corporate law firm N South. His bestselling expose of the real world of Indian courts, 'Legal Confidential', released in November 2015.