Losing its Balance: The Problems with the Supreme Court
India is formally a constitutional democracy which guarantees a clear separation of powers. There are three branches of government (legislative, executive, judiciary) that are supposed independent of each other. However, India's judiciary is constitutionally given a lot of power and independence and is almost wholly divorced from the other two branches of government, bar certain checks and balances. These checks and balances primarily consist of the Parliament being able to impeach judges of the Supreme Court if they are proven to be incompetent or make decisions in bad faith.
India's judiciary follows a standard law system, which means that laws are made both by the legislative branch and through precedent that is set by rulings by courts. The Supreme Court at the top of the judicial hierarchy is by far the most important one. The Supreme Court of India is a court of the first instance (a court that can hear a case for the first time) and the final appeal court of India's judiciary. It listens to cases of great national importance, relating to both civil and criminal law matters.
India's Supreme Court has recently got into hot water after holding lawyer Prashant Bhushan in contempt of Court for posting critical tweets about the past 4 Chief Justices of India. This act was done as the Court believed that the tweets would "shake the public confidence in the institution of the judiciary". This act was heavily criticised by former justices of the Supreme Court and other people in government positions, as this was something that violates the right to dissent, particularly dissent against the judiciary. Another criticism is that the Supreme Court is wasting precious time on pursuing measures such as these when this time could be spent hearing essential cases. This criticism begs the question, why doesn’t the public engage with Supreme Court affairs to the same degree as the other two branches?
The Supreme Court is undoubtedly a crucial part of the government. The most important impact, in my opinion, is that the Supreme Court is given the power to overturn primary legislation passed by Parliament that is considered unconstitutional. This is called 'judicial supremacy' and effectively makes it the guardian of the Constitution. This gives the Supreme Court unprecedented power when compared to other Westminster-based governments, as the ability to strike down primary legislation significantly reduces the abilities of the Parliament.
The Supreme Court, therefore, also has the power to determine the outcome and interpret legislation on critical social issues. A vital example of this is when the Court decriminalised section 377, which deemed certain sexual acts, such as homosexuality, "against nature". The Court is an arbiter on social issues, and this gives it the ability to change our society for years to come, as decisions given by the Supreme Court are binding on all lower courts.
The Court almost seems beyond reproach in this country, free from the criticism about the structure. The head of the Supreme Court in India is called the Chief Justice, who is appointed by Parliament via the President of India, and serves until they are 65, or are removed via impeachment or death. The problem is that the position of Chief Justice is a revolving door that rotates quite frequently. The CJI tends to be the most senior judge, often in the twilight of their career in their 60s. Therefore, the Justice only serves for a relatively short time, with most judges serving for less than two years.
The uncertainty at the top of the Court can harm the reputation of it, particularly in India's standard law system, given the power that it has. Not having a stable leadership means that the Supreme Court's decisions hold less weight, as the Court could overrule decisions under different leadership.
A straightforward way to fix this is to increase the mandatory retirement age to ensure that judges stay for longer and that their judgements hold their ground. We could follow the lead of the UK Supreme Court, which has a mandatory retirement age of 75. In my opinion, it is necessary to retain a retirement age as having no age of compulsory retirement could lead to a Supreme Court that has justices that are 'behind the times' which could hamper the advancement of law. A good example is the US, where judges in the Supreme Court have life terms, and this can be said to inhibit any scope for judicial development in the country.
India's Supreme Court is also often criticised for the large number of pending cases that are yet to be adjudicated on. As of the first of October, there are 19,342 pending hearings to be done. The backlog can be attributed to inefficiencies in how the Supreme Court deals with cases.
Changes need to be made on what cases are taken on by the Court, and only the cases that are of public importance must be taken, and less critical cases are settled in lower courts. One thing that is particularly odd about the Indian Supreme Court is that it can act as a court of the first instance, which is incredibly uncommon for Supreme Courts around the world. The Supreme Court is often reserved for the most critical appeal cases, which means the facts of the cases are read in lower courts, which saves a lot of time in delivering the judgement. The Supreme Court of India needs to become a purely appellate court, as this would help narrow down the cases that come into the Court.
The general public is usually unaware of how the Supreme Court works and happenings in the Court are rarely covered by the mainstream media, unless if a case is politically or religiously contentious. We must understand how the Supreme Court works due to the political power that is given to them. The judges are no longer apolitical entities that only serve to apply the existing laws. The Court has control over policymaking, making the job inherently political. We must hold them to the same standard that we hold other political individuals, as they navigate the contentious parts of our law.
The Supreme Court recently had a scandal in 2018, where 4 Justices spoke out against Chief Justice Misra for allocating politically controversial cases to divisional benches that would ensure that the judgement favours a political party. The scandal led to a request for the impeachment of CJI Misra, which was rejected by vice-president Venkaiah Naidu.
Situations like these show the importance of checks and balances for the Supreme Court, and the importance of consistently engaging with the justices. Knowing who our judges are allowed us to hold them accountable for their actions, like how politicians are held responsible by the public via the media, or at least how they should be. However, it can be argued that keeping our justices anonymous keeps them from being political, but that is not the case, clearly from the case of Justice Misra.
It is essential that we all take our time to learn about our Supreme Court and how it works, and follow the inner workings of the Court, as the way we can help make our judicial system better is through public awareness of the issues with our Supreme Court. The Supreme Court is perhaps the most powerful organ of government and should not be taken for granted. Changes to how the courts work need to be explored, particularly in making the Court a purely appellate court and increasing the mandatory retirement age.
Illustrated by Teresa Paul